(Slip Opinion) OCTOBER TERM, 2023 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

TRUMP v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 23–939. Argued April 25, 2024—Decided July 1, 2024 

A federal grand jury indicted former President Donald J. Trump on four 

counts for conduct that occurred during his Presidency following the 

November 2020 election. The indictment alleged that after losing that 

election, Trump conspired to overturn it by spreading knowingly false

claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment

based on Presidential immunity, arguing that a President has absolute

immunity from criminal prosecution for actions performed within the 

outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties. The District 

Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D. C. 

Circuit affirmed. Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts. 

Held: Under our constitutional structure of separated powers, the nature 

of Presidential power entitles a former President to absolute immunity

from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no 

immunity for unofficial acts. Pp. 5–43.

(a) This case is the first criminal prosecution in our Nation’s history 

of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution

may proceed requires careful assessment of the scope of Presidential

power under the Constitution. The nature of that power requires that 

a former President have some immunity from criminal prosecution for

official acts during his tenure in office. At least with respect to the 
 

 

 

 

 

 

 

 

 

 

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President’s exercise of his core constitutional powers, this immunity 

must be absolute. As for his remaining official actions, he is entitled

to at least presumptive immunity. Pp. 5–15.

(1) Article II of the Constitution vests “executive Power” in “a 

President of the United States of America.” §1, cl. 1. The President 

has duties of “unrivaled gravity and breadth.” Trump v. Vance, 591 

U. S. 786, 800. His authority to act necessarily “stem[s] either from an

act of Congress or from the Constitution itself.” Youngstown Sheet & 

Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id., at 638 

(Jackson, J., concurring). When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one 

targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional 

power. Neither may the courts adjudicate a criminal prosecution that 

examines such Presidential actions. The Court thus concludes that 

the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. Pp. 6–9.

(2) Not all of the President’s official acts fall within his “conclusive 

and preclusive” authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of

his exclusive constitutional authority do not extend to conduct in areas

where his authority is shared with Congress. To determine the President’s immunity in this context, the Court looks primarily to the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases

where a President resisted prosecutorial demands for documents. P. 

9. 

(i) The Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J. 

Cooke ed. 1961) (A. Hamilton). They vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the “unique 

risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of 

his official duties,” the Court has recognized Presidential immunities 

and privileges “rooted in the constitutional tradition of the separation

of powers and supported by our history.” Id., at 749, 751, 752, n. 32. 

In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from “damages liability for acts

within the ‘outer perimeter’ of his official responsibility.” Id., at 756. 

The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needless 
 

 

 

 

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worry as to the possibility of damages actions stemming from any particular official decision.” Clinton v. Jones, 520 U. S. 681, 694, n. 19. 

By contrast, when prosecutors have sought evidence from the President, the Court has consistently rejected Presidential claims of absolute immunity. During the treason trial of former Vice President Aaron Burr, for instance, Chief Justice Marshall rejected President

Thomas Jefferson’s claim that the President could not be subjected to

a subpoena. Marshall simultaneously recognized, however, the existence of a “privilege” to withhold certain “official paper[s].” United 

States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when a 

subpoena issued to President Richard Nixon, the Court rejected his

claim of “absolute privilege.” United States v. Nixon, 418 U. S. 683, 

703. But recognizing “the public interest in candid, objective, and even

blunt or harsh opinions in Presidential decisionmaking,” it held that a 

“presumptive privilege” protects Presidential communications. Id., at 

708. Because that privilege “relates to the effective discharge of a 

President’s powers,” id., at 711, the Court deemed it “fundamental to 

the operation of Government and inextricably rooted in the separation

of powers under the Constitution.” Id., at 708. Pp. 9–12.

(ii) Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and

functions of the Executive Branch than simply seeking evidence in his

possession. The danger is greater than what led the Court to recognize 

absolute Presidential immunity from civil damages liability—that the

President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald, 457 U. S., at 

745. Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and 

imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil

damages. The hesitation to execute the duties of his office fearlessly 

and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579 

U. S. 550, 575, raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U. S., at 751. But there is also a compelling

“public interest in fair and effective law enforcement.” Vance, 591 

U. S., at 808. 

Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the

Court’s precedent necessitate at least a presumptive immunity from

criminal prosecution for a President’s acts within the outer perimeter 

of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive 
 

 

 

4 TRUMP v. UNITED STATES 

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Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be 

immune from prosecution for an official act unless the Government can

show that applying a criminal prohibition to that act would pose no 

“dangers of intrusion on the authority and functions of the Executive 

Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15. 

(3) As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure 

that the President’s decisionmaking is not distorted by the threat of 

future litigation stemming from those actions, that concern does not 

support immunity for unofficial conduct. Clinton, 520 U. S., at 694, 

and n. 19. The separation of powers does not bar a prosecution predicated on the President’s unofficial acts. P. 15. 

(b) The first step in deciding whether a former President is entitled

to immunity from a particular prosecution is to distinguish his official

from unofficial actions. In this case, no court thus far has drawn that 

distinction, in general or with respect to the conduct alleged in particular. It is therefore incumbent upon the Court to be mindful that it is

“a court of final review and not first view.” Zivotofsky v. Clinton, 566 

U. S. 189, 201. Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how 

to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct. The Court offers guidance on

those issues. Pp. 16–32. 

(1) When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his 

office. Fitzgerald, 456 U. S., at 757. Determining whether an action 

is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United 

States frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. The 

immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so 

long as they are “not manifestly or palpably beyond [his] authority.” 

Blassingame v. Trump, 87 F. 4th 1, 13 (CADC). 

In dividing official from unofficial conduct, courts may not inquire

into the President’s motives. Such a “highly intrusive” inquiry would

risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial 

merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on “every allegation that 

an action was unlawful,” depriving immunity of its intended effect. 
 

 

 

 

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Ibid. Pp. 17–19.

(2) With the above principles in mind, the Court turns to the conduct alleged in the indictment. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are 

readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—

such as those involving Trump’s interactions with the Vice President, 

state officials, and certain private parties, and his comments to the 

general public—present more difficult questions. Pp. 19–30.

(i) The indictment alleges that as part of their conspiracy to 

overturn the legitimate results of the 2020 presidential election, 

Trump and his co-conspirators attempted to leverage the Justice Department’s power and authority to convince certain States to replace 

their legitimate electors with Trump’s fraudulent slates of electors. 

According to the indictment, Trump met with the Acting Attorney

General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a 

letter from the Department to those States regarding such fraud. The 

indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him. 

The Government does not dispute that the indictment’s allegations

regarding the Justice Department involve Trump’s use of official 

power. The allegations in fact plainly implicate Trump’s “conclusive 

and preclusive” authority. The Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate

and prosecute, including with respect to allegations of election crime. 

Nixon, 418 U. S., at 693. And the President’s “management of the Executive Branch” requires him to have “unrestricted power to remove

the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750. 

The indictment’s allegations that the requested investigations were 

shams or proposed for an improper purpose do not divest the President 

of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the 

alleged conduct involving his discussions with Justice Department officials. Pp. 19–21.

(ii) The indictment next alleges that Trump and his co-conspirators “attempted to enlist the Vice President to use his ceremonial role

at the January 6 certification proceeding to fraudulently alter the election results.” App. 187, Indictment ¶10(d). In particular, the indictment alleges several conversations in which Trump pressured the Vice 

President to reject States’ legitimate electoral votes or send them back 
 

 

 

 

 

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to state legislatures for review. 

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count 

the electoral votes is a constitutional and statutory duty of the Vice

President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s 

allegations that Trump attempted to pressure the Vice President to

take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity 

is rebutted under the circumstances. It is the Government’s burden to 

rebut the presumption of immunity. The Court therefore remands to 

the District Court to assess in the first instance whether a prosecution 

involving Trump’s alleged attempts to influence the Vice President’s 

oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch. Pp.

21–24. 

(iii) The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, 

private parties, and the general public. In particular, the indictment

alleges that Trump and his co-conspirators attempted to convince certain state officials that election fraud had tainted the popular vote 

count in their States, and thus electoral votes for Trump’s opponent 

needed to be changed to electoral votes for Trump. After Trump failed

to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit

fraudulent slates of Presidential electors to obstruct the certification 

proceeding. On Trump’s view, the alleged conduct qualifies as official

because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, 

Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may 

be correct, and with respect to which conduct, requires a fact-specific 

analysis of the indictment’s extensive and interrelated allegations.

The Court accordingly remands to the District Court to determine in 

the first instance whether Trump’s conduct in this area qualifies as 

official or unofficial. Pp. 24–28.

(iv) The indictment also contains various allegations regarding

Trump’s conduct in connection with the events of January 6 itself. The 

alleged conduct largely consists of Trump’s communications in the 

form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” 

Trump v. Hawaii, 585 U. S. 667, 701. So most of a President’s public 
 

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communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in

which the President speaks in an unofficial capacity—perhaps as a 

candidate for office or party leader. To the extent that may be the case, 

objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the 

communications alleged in the indictment involve official conduct may

depend on the content and context of each. This necessarily factbound

analysis is best performed initially by the District Court. The Court 

therefore remands to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. Pp. 28–30.

(3) Presidents cannot be indicted based on conduct for which they

are immune from prosecution. On remand, the District Court must 

carefully analyze the indictment’s remaining allegations to determine 

whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must 

ensure that sufficient allegations support the indictment’s charges 

without such conduct. Testimony or private records of the President 

or his advisers probing such conduct may not be admitted as evidence

at trial. Pp. 30–32. 

(c) Trump asserts a far broader immunity than the limited one the 

Court recognizes, contending that the indictment must be dismissed

because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what 

conduct a President may be prosecuted if he was never impeached and

convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little 

support to Trump’s position. The Federalist Papers on which Trump 

relies concerned the checks available against a sitting President; they

did not endorse or even consider whether the Impeachment Judgment 

Clause immunizes a former President from prosecution. Transforming

the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32–34. 

(d) The Government takes a similarly broad view, contending that

the President enjoys no immunity from criminal prosecution for any

action. On its view, as-applied challenges in the course of the trial 

suffice to protect Article II interests, and review of a district court’s 

decisions on such challenges should be deferred until after trial. But 

questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an

extended proceeding alone may render him “unduly cautious in the 
 

 

 

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discharge of his official duties.” Fitzgerald, 457 U. S., at 752, n. 32. 

The Constitution does not tolerate such impediments to “the effective 

functioning of government.” Id., at 751. Pp. 34–37.

(e) This case poses a question of lasting significance: When may a

former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and 

the public at large, the Court cannot afford to fixate exclusively, or 

even primarily, on present exigencies. Enduring separation of powers

principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is 

official. The President is not above the law. But under our system of 

separated powers, the President may not be prosecuted for exercising 

his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity 

applies equally to all occupants of the Oval Office. Pp. 41–43. 

91 F. 4th 1173, vacated and remanded. 

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, 

ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring 

opinion. BARRETT, J., filed an opinion concurring in part. SOTOMAYOR, 

J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined. 

JACKSON, J., filed a dissenting opinion. 
 

_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

No. 23–939 

DONALD J. TRUMP, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[July 1, 2024]

 CHIEF JUSTICE ROBERTS delivered the opinion of the 

Court. 

This case concerns the federal indictment of a former 

President of the United States for conduct alleged to involve 

official acts during his tenure in office. We consider the 

scope of a President’s immunity from criminal prosecution. 

I 

From January 2017 until January 2021, Donald J. 

Trump served as President of the United States. On August 1, 2023, a federal grand jury indicted him on four 

counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged

that after losing that election, Trump conspired to overturn 

it by spreading knowingly false claims of election fraud to

obstruct the collecting, counting, and certifying of the election results. 

According to the indictment, Trump advanced his goal

through five primary means. First, he and his co-conspirators 

“used knowingly false claims of election fraud to get state

legislators and election officials to . . . change electoral 
 

 

 

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votes for [Trump’s] opponent, Joseph R. Biden, Jr., to electoral votes for [Trump].” App. 185, Indictment ¶10(a). Second, Trump and his co-conspirators “organized fraudulent 

slates of electors in seven targeted states” and “caused 

these fraudulent electors to transmit their false certificates 

to the Vice President and other government officials to be 

counted at the certification proceeding on January 6.” Id., 

at 186, ¶10(b). Third, Trump and his co-conspirators attempted to use the Justice Department “to conduct sham 

election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” Id., at 186–187, ¶10(c).

Fourth, Trump and his co-conspirators attempted to persuade “the Vice President to use his ceremonial role at the 

January 6 certification proceeding to fraudulently alter the

election results.” Id., at 187, ¶10(d). And when that failed, 

on the morning of January 6, they “repeated knowingly 

false claims of election fraud to gathered supporters, falsely 

told them that the Vice President had the authority to and 

might alter the election results, and directed them to the 

Capitol to obstruct the certification proceeding.” Ibid. 

Fifth, when “a large and angry crowd . . . violently attacked

the Capitol and halted the proceeding,” Trump and his coconspirators “exploited the disruption by redoubling efforts 

to levy false claims of election fraud and convince Members

of Congress to further delay the certification.” Id., at 187– 

188, ¶10(e).

Based on this alleged conduct, the indictment charged

Trump with (1) conspiracy to defraud the United States in 

violation of 18 U. S. C. §371, (2) conspiracy to obstruct an

official proceeding in violation of §1512(k), (3) obstruction

of and attempt to obstruct an official proceeding in violation 
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Opinion of the Court 

of §1512(c)(2), §2, and (4) conspiracy against rights in violation of §241.1 

Trump moved to dismiss the indictment based on Presidential immunity. In his view, the conduct alleged in the 

indictment, properly characterized, was that while he was 

President he (1) “made public statements about the administration of the federal election”; (2) communicated with

senior Justice Department officials “about investigating 

election fraud and about choosing the leadership” of the Department; (3) “communicated with state officials about the 

administration of the federal election and their exercise of 

official duties with respect to it”; (4) “communicated with

the Vice President” and with “Members of Congress about

the exercise of their official duties regarding the election 

certification”; and (5) “authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official 

authority in a manner advocated for by President Trump.” 

Motion To Dismiss Indictment Based on Presidential Immunity in No. 1:23–cr–00257 (DC), ECF Doc. 74, p. 9. 

Trump argued that all of the indictment’s allegations fell 

within the core of his official duties. Id., at 27. And he contended that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, to ensure that he can 

undertake the especially sensitive duties of his office with 

bold and unhesitating action. Id., at 14, 24. 

The District Court denied the motion to dismiss, holding 

—————— 1Trump contends that the indictment stretches Section 1512(c)(2) “far

beyond its natural meaning.” Brief for Petitioner 39, n. 4. As we explained in Fischer v. United States, Section 1512(c)(2) covers acts that 

impair “the availability or integrity for use in an official proceeding of

records, documents, objects, or . . . other things used in the proceeding.” 

603 U. S. ___, ___ (2024) (slip op., at 16). If necessary, the District Court

should determine in the first instance whether the Section 1512(c)(2) 

charges may proceed in light of our decision in Fischer. 
 

 

 

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that “former Presidents do not possess absolute federal 

criminal immunity for any acts committed while in office.”

2023 WL 8359833, *15 (DC, Dec. 1, 2023). The District 

Court recognized that the President is immune from damages liability in civil cases, to protect against the chilling 

effect such exposure might have on the carrying out of his

responsibilities. See Nixon v. Fitzgerald, 457 U. S. 731, 

749–756 (1982). But it reasoned that “the possibility of vexatious post-Presidency litigation is much reduced in the 

criminal context” in light of “[t]he robust procedural safeguards attendant to federal criminal prosecutions.” 2023 

WL 8359833, *9–*10. The District Court declined to decide 

whether the indicted conduct involved official acts. See id., 

at *15. 

The D. C. Circuit affirmed. 91 F. 4th 1173 (2024) (per curiam). Citing Marbury v. Madison, 1 Cranch 137 (1803),

the court distinguished between two kinds of official acts: 

discretionary and ministerial. 91 F. 4th, at 1189–1190. It 

observed that “although discretionary acts are ‘only politically examinable,’ the judiciary has the power to hear cases” 

involving ministerial acts that an officer is directed to perform by the legislature. Ibid. (quoting Marbury, 1 Cranch, 

at 166). From this distinction, the D. C. Circuit concluded 

that the “separation of powers doctrine, as expounded in 

Marbury and its progeny, necessarily permits the Judiciary 

to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution

means that the former President has allegedly acted in defiance of the Congress’s laws.” 91 F. 4th, at 1191. In the 

court’s view, the fact that Trump’s actions “allegedly violated generally applicable criminal laws” meant that those

actions “were not properly within the scope of his lawful 

discretion.” Id., at 1192. The D. C. Circuit thus concluded 

that Trump had “no structural immunity from the charges 

in the Indictment.” Ibid. Like the District Court, the D. C. 
 

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Opinion of the Court 

Circuit declined to analyze the actions described in the indictment to determine whether they involved official acts. 

See id., at 1205, n. 14. 

We granted certiorari to consider the following question: 

“Whether and if so to what extent does a former President 

enjoy presidential immunity from criminal prosecution for 

conduct alleged to involve official acts during his tenure in

office.” 601 U. S. ___ (2024). 

II 

This case is the first criminal prosecution in our Nation’s

history of a former President for actions taken during his

Presidency. We are called upon to consider whether and

under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of 

Presidential power under the Constitution. We undertake 

that responsibility conscious that we must not confuse “the

issue of a power’s validity with the cause it is invoked to 

promote,” but must instead focus on the “enduring consequences upon the balanced power structure of our Republic.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 

634 (1952) (Jackson, J., concurring).

The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial 

acts committed while in office. See Tr. of Oral Arg. 28.

They also agree that some of the conduct described in the 

indictment includes actions taken by Trump in his unofficial capacity. See id., at 28–30, 36–37, 124. 

They disagree, however, about whether a former President can be prosecuted for his official actions. Trump contends that just as a President is absolutely immune from

civil damages liability for acts within the outer perimeter of 

his official responsibilities, Fitzgerald, 457 U. S., at 756, he 

must be absolutely immune from criminal prosecution for 

such acts. Brief for Petitioner 10. And Trump argues that

the bulk of the indictment’s allegations involve conduct in 
 

6 TRUMP v. UNITED STATES 

Opinion of the Court 

his official capacity as President. See Tr. of Oral Arg. 30– 

32. Although the Government agrees that some official actions are included in the indictment’s allegations, see id., at 

125, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized. See Brief for United 

States 9. 

We conclude that under our constitutional structure of 

separated powers, the nature of Presidential power requires that a former President have some immunity from

criminal prosecution for official acts during his tenure in 

office. At least with respect to the President’s exercise of 

his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in

this case, however, we need not and do not decide whether 

that immunity must be absolute, or instead whether a presumptive immunity is sufficient. 

A 

Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United 

States of America.” §1, cl. 1. The President’s duties are of 

“unrivaled gravity and breadth.” Trump v. Vance, 591 U. S. 

786, 800 (2020). They include, for instance, commanding 

the Armed Forces of the United States; granting reprieves

and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this

Court, and Officers of the United States. See §2. He also 

has important foreign relations responsibilities: making

treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing 

matters related to terrorism, trade, and immigration. See 

§§2, 3. Domestically, he must “take Care that the Laws be 

faithfully executed,” §3, and he bears responsibility for the 
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Opinion of the Court 

actions of the many departments and agencies within the 

Executive Branch. He also plays a role in lawmaking by 

recommending to Congress the measures he thinks wise

and signing or vetoing the bills Congress passes. See Art. 

I, §7, cl. 2; Art. II, §3. 

No matter the context, the President’s authority to act

necessarily “stem[s] either from an act of Congress or from

the Constitution itself.” Youngstown, 343 U. S., at 585. In 

the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id., at 638 (Jackson, J., concurring). When the President exercises such authority, he may 

act even when the measures he takes are “incompatible

with the expressed or implied will of Congress.” Id., at 637. 

The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.” Id., at 

637–638. And the courts have “no power to control [the 

President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution. Marbury, 1 Cranch, at 166. 

If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,”

the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held 

that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id., 

at 582–589 (majority opinion). But once it is determined 

that the President acted within the scope of his exclusive 

authority, his discretion in exercising such authority cannot 

be subject to further judicial examination.

The Constitution, for example, vests the “Power to Grant

Reprieves and Pardons for Offences against the United 

States” in the President. Art. II, §2, cl. 1. During and after

the Civil War, President Lincoln offered a full pardon, with

restoration of property rights, to anyone who had “engaged 

in the rebellion” but agreed to take an oath of allegiance to

the Union. United States v. Klein, 13 Wall. 128, 139–141 
 

 

 

8 TRUMP v. UNITED STATES 

Opinion of the Court 

(1872). But in 1870, Congress enacted a provision that prohibited using the President’s pardon as evidence of restoration of property rights. Id., at 143–144. Chief Justice 

Chase held the provision unconstitutional because it “impair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.” Id., at 147. “To the 

executive alone is intrusted the power of pardon,” and the

“legislature cannot change the effect of such a pardon any 

more than the executive can change a law.” Id., at 147–148. 

The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting

upon the subject.” Youngstown, 343 U. S., at 637–638 

(Jackson, J., concurring).

Some of the President’s other constitutional powers also 

fit that description. “The President’s power to remove—and 

thus supervise—those who wield executive power on his behalf,” for instance, “follows from the text of Article II.” Seila 

Law LLC v. Consumer Financial Protection Bureau, 591 

U. S. 197, 204 (2020). We have thus held that Congress 

lacks authority to control the President’s “unrestricted 

power of removal” with respect to “executive officers of the 

United States whom he has appointed.” Myers v. United 

States, 272 U. S. 52, 106, 176 (1926); see Youngstown, 343 

U. S., at 638, n. 4 (Jackson, J., concurring) (citing the President’s “exclusive power of removal in executive agencies” 

as an example of “conclusive and preclusive” constitutional 

authority); cf. Seila Law, 591 U. S., at 215 (noting only “two 

exceptions to the President’s unrestricted removal power”).

The power “to control recognition determinations” of foreign 

countries is likewise an “exclusive power of the President.” 

Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015). Congressional

commands contrary to the President’s recognition determinations are thus invalid. Ibid. 

Congress cannot act on, and courts cannot examine, the 

President’s actions on subjects within his “conclusive and 

preclusive” constitutional authority. It follows that an Act 
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Opinion of the Court 

of Congress—either a specific one targeted at the President 

or a generally applicable one—may not criminalize the 

President’s actions within his exclusive constitutional 

power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus 

conclude that the President is absolutely immune from 

criminal prosecution for conduct within his exclusive 

sphere of constitutional authority. 

B 

But of course not all of the President’s official acts fall 

within his “conclusive and preclusive” authority. As Justice 

Robert Jackson recognized in Youngstown, the President 

sometimes “acts pursuant to an express or implied authorization of Congress,” or in a “zone of twilight” where “he and 

Congress may have concurrent authority.” 343 U. S., at 

635, 637 (concurring opinion). The reasons that justify the 

President’s absolute immunity from criminal prosecution

for acts within the scope of his exclusive authority therefore

do not extend to conduct in areas where his authority is 

shared with Congress. 

We recognize that only a limited number of our prior decisions guide determination of the President’s immunity in

this context. That is because proceedings directly involving 

a President have been uncommon in our Nation, and “decisions of the Court in this area” have accordingly been “rare”

and “episodic.” Dames & Moore v. Regan, 453 U. S. 654, 661 

(1981). To resolve the matter, therefore, we look primarily 

to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in 

the civil context, and our criminal cases where a President 

resisted prosecutorial demands for documents. 

1 

The President “occupies a unique position in the constitutional scheme,” Fitzgerald, 457 U. S., at 749, as “the only 
 

 

10 TRUMP v. UNITED STATES 

Opinion of the Court 

person who alone composes a branch of government,” 

Trump v. Mazars USA, LLP, 591 U. S. 848, 868 (2020). The 

Framers “sought to encourage energetic, vigorous, decisive, 

and speedy execution of the laws by placing in the hands of 

a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the 

Constitution divides among many.” Clinton v. Jones, 520 

U. S. 681, 712 (1997) (Breyer, J., concurring in judgment).

They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the

steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’” Seila Law, 591 U. S., at 

223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke 

ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and 

“energetic” Executive, they thought, was to ensure “good

government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472. 

The Framers accordingly vested the President with “supervisory and policy responsibilities of utmost discretion 

and sensitivity.” Fitzgerald, 457 U. S., at 750. He must 

make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Id., 

at 752. There accordingly “exists the greatest public interest” in providing the President with “‘the maximum ability 

to deal fearlessly and impartially with’ the duties of his office.” Ibid. (quoting Ferri v. Ackerman, 444 U. S. 193, 203 

(1979)). Appreciating the “unique risks to the effective

functioning of government” that arise when the President’s 

energies are diverted by proceedings that might render him

“unduly cautious in the discharge of his official duties,” we 

have recognized Presidential immunities and privileges 

“rooted in the constitutional tradition of the separation of 

powers and supported by our history.” Fitzgerald, 457 

U. S., at 749, 751, 752, n. 32. 

In Nixon v. Fitzgerald, for instance, we recognized that

as “a functionally mandated incident of [his] unique office,” 
 

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Opinion of the Court 

a former President “is entitled to absolute immunity from

damages liability predicated on his official acts.” Id., at 

749. That case involved a terminated Air Force employee

who sued former President Richard Nixon for damages, alleging that Nixon approved an Air Force reorganization

that wrongfully led to his firing. In holding that Nixon was

immune from that suit, “our dominant concern” was to 

avoid “diversion of the President’s attention during the decisionmaking process caused by needless worry as to the

possibility of damages actions stemming from any particular official decision.” Clinton, 520 U. S., at 694, n. 19. 

“[T]he singular importance of the President’s duties” implicating “matters likely to ‘arouse the most intense feelings,’” 

coupled with “the sheer prominence of [his] office,” heightens the prospect of private damages suits that would 

threaten such diversion. Fitzgerald, 457 U. S., at 751–753 

(quoting Pierson v. Ray, 386 U. S. 547, 554 (1967)). We 

therefore concluded that the President must be absolutely

immune from “damages liability for acts within the ‘outer

perimeter’ of his official responsibility.” Fitzgerald, 457 

U. S., at 756. 

By contrast, when prosecutors have sought evidence from 

the President, we have consistently rejected Presidential 

claims of absolute immunity. For instance, during the treason trial of former Vice President Aaron Burr, Chief Justice 

Marshall rejected President Thomas Jefferson’s claim that

the President could not be subjected to a subpoena. Marshall reasoned that “the law does not discriminate between 

the president and a private citizen.” United States v. Burr, 

25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807) (Burr I). Because a President does not “stand exempt from the general 

provisions of the constitution,” including the Sixth Amendment’s guarantee that those accused shall have compulsory

process for obtaining witnesses for their defense, a subpoena could issue. Id., at 33–34. 

Marshall acknowledged, however, the existence of a 
 

 

12 TRUMP v. UNITED STATES 

Opinion of the Court 

“privilege” to withhold certain “official paper[s]” that “ought

not on light ground to be forced into public view.” United 

States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 

1807) (Burr II); see also Burr I, 25 F. Cas., at 37 (stating

that nothing before the court showed that the document in

question “contain[ed] any matter the disclosure of which

would endanger the public safety”). And he noted that a 

court may not “be required to proceed against the president

as against an ordinary individual.” Burr II, 25 F. Cas., at 

192. 

Similarly, when a subpoena issued to President Nixon to

produce certain tape recordings and documents relating to

his conversations with aides and advisers, this Court rejected his claim of “absolute privilege,” given the “constitutional duty of the Judicial Branch to do justice in criminal 

prosecutions.” United States v. Nixon, 418 U. S. 683, 703, 

707 (1974). But we simultaneously recognized “the public 

interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking,” as well as the need to 

protect “communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” Id., at 705, 708. Because 

the President’s “need for complete candor and objectivity

from advisers calls for great deference from the courts,” we

held that a “presumptive privilege” protects Presidential 

communications. Id., at 706, 708. That privilege, we explained, “relates to the effective discharge of a President’s 

powers.” Id., at 711. We thus deemed it “fundamental to 

the operation of Government and inextricably rooted in the 

separation of powers under the Constitution.” Id., at 708. 

2 

Criminally prosecuting a President for official conduct 

undoubtedly poses a far greater threat of intrusion on the 

authority and functions of the Executive Branch than 

simply seeking evidence in his possession, as in Burr and 
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Opinion of the Court 

Nixon. The danger is akin to, indeed greater than, what led 

us to recognize absolute Presidential immunity from civil 

damages liability—that the President would be chilled from

taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald, 457 U. S., at 745. Although the President might be exposed to fewer criminal 

prosecutions than the range of civil damages suits that 

might be brought by various plaintiffs, the threat of trial, 

judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly

more likely to distort Presidential decisionmaking than the 

potential payment of civil damages.

The hesitation to execute the duties of his office fearlessly 

and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. 

United States, 579 U. S. 550, 575 (2016), raises “unique 

risks to the effective functioning of government,” Fitzgerald, 457 U. S., at 751. A President inclined to take one 

course of action based on the public interest may instead

opt for another, apprehensive that criminal penalties may 

befall him upon his departure from office. And if a former 

President’s official acts are routinely subjected to scrutiny

in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. Vance, 591 

U. S., at 800. The Framers’ design of the Presidency did not 

envision such counterproductive burdens on the “vigor[]” 

and “energy” of the Executive. The Federalist No. 70, at 

471–472. 

We must, however, “recognize[] the countervailing interests at stake.” Vance, 591 U. S., at 799. Federal criminal 

laws seek to redress “a wrong to the public” as a whole, not 

just “a wrong to the individual.” Huntington v. Attrill, 146 

U. S. 657, 668 (1892). There is therefore a compelling “public interest in fair and effective law enforcement.” Vance, 

591 U. S., at 808. The President, charged with enforcing 
 

14 TRUMP v. UNITED STATES 

Opinion of the Court 

federal criminal laws, is not above them. 

Chief Justice Marshall’s decisions in Burr and our decision in Nixon recognized the distinct interests present in 

criminal prosecutions. Although Burr acknowledged that 

the President’s official papers may be privileged and publicly unavailable, it did not grant him an absolute exemption from responding to subpoenas. See Burr II, 25 F. Cas., 

at 192; Burr I, 25 F. Cas., at 33–34. Nixon likewise recognized a strong protection for the President’s confidential

communications—a “presumptive privilege”—but it did not 

entirely exempt him from providing evidence in criminal 

proceedings. 418 U. S., at 708. 

Taking into account these competing considerations, we

conclude that the separation of powers principles explicated

in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within

the outer perimeter of his official responsibility. Such an 

immunity is required to safeguard the independence and 

effective functioning of the Executive Branch, and to enable 

the President to carry out his constitutional duties without 

undue caution. Indeed, if presumptive protection for the 

President is necessary to enable the “effective discharge” of

his powers when a prosecutor merely seeks evidence of his 

official papers and communications, id., at 711, it is certainly necessary when the prosecutor seeks to charge, try, 

and imprison the President himself for his official actions.

At a minimum, the President must therefore be immune 

from prosecution for an official act unless the Government 

can show that applying a criminal prohibition to that act 

would pose no “dangers of intrusion on the authority and

functions of the Executive Branch.” Fitzgerald, 457 U. S., 

at 754. 

But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this

immunity is presumptive or absolute. See Part III–B, infra. 

Because we need not decide that question today, we do not 
 

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Opinion of the Court 

decide it. “[O]ne case” in more than “two centuries does not

afford enough experience” to definitively and comprehensively determine the President’s scope of immunity from

criminal prosecution. Mazars, 591 U. S., at 871. 

C 

As for a President’s unofficial acts, there is no immunity.

The principles we set out in Clinton v. Jones confirm as 

much. When Paula Jones brought a civil lawsuit against 

then-President Bill Clinton for acts he allegedly committed 

prior to his Presidency, we rejected his argument that he

enjoyed temporary immunity from the lawsuit while serving as President. 520 U. S., at 684. Although Presidential

immunity is required for official actions to ensure that the 

President’s decisionmaking is not distorted by the threat of

future litigation stemming from those actions, that concern 

does not support immunity for unofficial conduct. Id., at 

694, and n. 19. The “‘justifying purposes’” of the immunity 

we recognized in Fitzgerald, and the one we recognize today, are not that the President must be immune because he

is the President; rather, they are to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions. 

520 U. S., at 694, and n. 19 (quoting Fitzgerald, 457 U. S., 

at 755). “[I]t [is] the nature of the function performed, not

the identity of the actor who perform[s] it, that inform[s] 

our immunity analysis.” Forrester v. White, 484 U. S. 219, 

229 (1988). The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.2 

—————— 2Our decision in Clinton permitted claims alleging unofficial acts to 

proceed against the sitting President. See 520 U. S., at 684. In the criminal context, however, the Justice Department “has long recognized” that

“the separation of powers precludes the criminal prosecution of a sitting

President.” Brief for United States 9 (citing A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000); 

emphasis deleted); see Tr. for Oral Arg. 78. 
 

 

 

 

16 TRUMP v. UNITED STATES 

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III 

Determining whether a former President is entitled to 

immunity from a particular prosecution requires applying

the principles we have laid out to his conduct at issue. The 

first step is to distinguish his official from unofficial actions.

In this case, however, no court has thus far considered how 

to draw that distinction, in general or with respect to the

conduct alleged in particular. 

Despite the unprecedented nature of this case, and the 

very significant constitutional questions that it raises, the

lower courts rendered their decisions on a highly expedited 

basis. Because those courts categorically rejected any form 

of Presidential immunity, they did not analyze the conduct 

alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has

briefed that issue before us (though they discussed it at oral 

argument in response to questions). And like the underlying immunity question, that categorization raises multiple

unprecedented and momentous questions about the powers

of the President and the limits of his authority under the 

Constitution. As we have noted, there is little pertinent 

precedent on those subjects to guide our review of this 

case—a case that we too are deciding on an expedited basis,

less than five months after we granted the Government’s

request to construe Trump’s emergency application for a

stay as a petition for certiorari, grant that petition, and answer the consequential immunity question. See 601 U. S., 

at ___. Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition

that “[o]urs is a court of final review and not first view.” 

Zivotofsky v. Clinton, 566 U. S. 189, 201 (2012) (internal

quotation marks omitted).

Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, 

and how to do so with respect to the indictment’s extensive

and detailed allegations covering a broad range of conduct. 
 

Cite as: 603 U. S. ____ (2024) 17 

Opinion of the Court 

We offer guidance on those issues below. Certain allegations—such as those involving Trump’s discussions with 

the Acting Attorney General—are readily categorized in 

light of the nature of the President’s official relationship to

the office held by that individual. Other allegations—such

as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his

comments to the general public—present more difficult

questions. Although we identify several considerations pertinent to classifying those allegations and determining

whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first

instance. 

A 

Distinguishing the President’s official actions from his 

unofficial ones can be difficult. When the President acts 

pursuant to “constitutional and statutory authority,” he

takes official action to perform the functions of his office. 

Fitzgerald, 457 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the 

President’s authority to take that action. 

But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United 

States “in a broad variety of areas, many of them highly 

sensitive,” frequently makes it “difficult to determine which 

of [his] innumerable ‘functions’ encompassed a particular 

action.” Id., at 756. And some Presidential conduct—for 

example, speaking to and on behalf of the American people, 

see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly 

can qualify as official even when not obviously connected to 

a particular constitutional or statutory provision. For those 

reasons, the immunity we have recognized extends to the

“outer perimeter” of the President’s official responsibilities, 

covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump, 87 
 

18 TRUMP v. UNITED STATES 

Opinion of the Court 

F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald, 457 U. S., at 755–756 (noting that we

have “refused to draw functional lines finer than history 

and reason would support”).

In dividing official from unofficial conduct, courts may 

not inquire into the President’s motives. Such an inquiry

would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation 

of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, “[i]t would 

seriously cripple the proper and effective administration of

public affairs as entrusted to the executive branch of the

government” if “[i]n exercising the functions of his office,”

the President was “under an apprehension that the motives 

that control his official conduct may, at any time, become

the subject of inquiry.” Fitzgerald, 457 U. S., at 745 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)). We thus 

rejected such inquiries in Fitzgerald. The plaintiff there

contended that he was dismissed from the Air Force for retaliatory reasons. See 457 U. S., at 733–741, 756. The Air 

Force responded that the reorganization that led to Fitzgerald’s dismissal was undertaken to promote efficiency. Ibid. 

Because under Fitzgerald’s theory “an inquiry into the

President’s motives could not be avoided,” we rejected the 

theory, observing that “[i]nquiries of this kind could be 

highly intrusive.” Id., at 756. “[B]are allegations of malice 

should not suffice to subject government officials either to

the costs of trial or to the burdens of broad-reaching discovery.” Harlow v. Fitzgerald, 457 U. S. 800, 817–818 (1982).

Nor may courts deem an action unofficial merely because 

it allegedly violates a generally applicable law. For instance, when Fitzgerald contended that his dismissal violated various congressional statutes and thus rendered his

discharge “outside the outer perimeter of [Nixon’s] duties,”

we rejected that contention. 457 U. S., at 756. Otherwise, 

Presidents would be subject to trial on “every allegation 
Cite as: 603 U. S. ____ (2024) 19 

Opinion of the Court 

that an action was unlawful,” depriving immunity of its intended effect. Ibid. 

B 

With these principles in mind, we turn to the conduct alleged in the indictment. 

1 

The indictment broadly alleges that Trump and his coconspirators sought to “overturn the legitimate results of

the 2020 presidential election.” App. 183, Indictment ¶7. 

It charges that they conspired to obstruct the January 6

congressional proceeding at which electoral votes are 

counted and certified, and the winner of the election is certified as President-elect. Id., at 181–185, ¶¶4, 7, 9. As part

of this conspiracy, Trump and his co-conspirators allegedly 

attempted to leverage the Justice Department’s power and 

authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors. 

See id., at 215–220, ¶¶70–85. According to the indictment, 

Trump met with the Acting Attorney General and other

senior Justice Department and White House officials to discuss investigating purported election fraud and sending a

letter from the Department to those States regarding such

fraud. See, e.g., id., at 217, 219–220, ¶¶77, 84. The indictment further alleges that after the Acting Attorney General 

resisted Trump’s requests, Trump repeatedly threatened to 

replace him. See, e.g., id., at 216–217, ¶¶74, 77.

The Government does not dispute that the indictment’s

allegations regarding the Justice Department involve

Trump’s “use of official power.” Brief for United States 46; 

see id., at 10–11; Tr. of Oral Arg. 125. The allegations in

fact plainly implicate Trump’s “conclusive and preclusive” 

authority. “[I]nvestigation and prosecution of crimes is a

quintessentially executive function.” Brief for United 

States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 
 

20 TRUMP v. UNITED STATES 

Opinion of the Court 

(1988) (Scalia, J., dissenting)). And the Executive Branch 

has “exclusive authority and absolute discretion” to decide

which crimes to investigate and prosecute, including with 

respect to allegations of election crime. Nixon, 418 U. S., at 

693; see United States v. Texas, 599 U. S. 670, 678–679 

(2023) (“Under Article II, the Executive Branch possesses 

authority to decide ‘how to prioritize and how aggressively 

to pursue legal actions against defendants who violate the

law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 

429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and 

other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of 

the Justice Department, acts as the President’s “chief law 

enforcement officer” who “provides vital assistance to [him]

in the performance of [his] constitutional duty to ‘preserve, 

protect, and defend the Constitution.’” Mitchell v. Forsyth, 

472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the

special province of the Executive Branch,” Heckler v. 

Chaney, 470 U. S. 821, 832 (1985), and the Constitution

vests the entirety of the executive power in the President, 

Art. II, §1. For that reason, Trump’s threatened removal of 

the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers 

of the United States whom he has appointed” may not be

regulated by Congress or reviewed by the courts. Myers, 

272 U. S., at 106, 176; see supra, at 8. The President’s 

“management of the Executive Branch” requires him to 

have “unrestricted power to remove the most important of

his subordinates”—such as the Attorney General—“in their 

most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted). 
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Opinion of the Court 

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose

do not divest the President of exclusive authority over the

investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment

¶10(c). And the President cannot be prosecuted for conduct

within his exclusive constitutional authority. Trump is 

therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. 

2 

The indictment next alleges that Trump and his coconspirators “attempted to enlist the Vice President to use 

his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id., at 187, 

¶10(d). In particular, the indictment alleges several conversations in which Trump pressured the Vice President to

reject States’ legitimate electoral votes or send them back 

to state legislatures for review. See, e.g., id., at 222–224, 

226, ¶¶90, 92–93, 97.

The Government explained at oral argument that although it “has not yet had to come to grips with how [it]

would analyze” Trump’s interactions with the Vice President, there is “support” to characterize that conduct as official. Tr. of Oral Arg. 128. Indeed, our constitutional system 

anticipates that the President and Vice President will remain in close contact regarding their official duties over the 

course of the President’s term in office. These two officials 

are the only ones “elected by the entire Nation.” Seila Law, 

591 U. S., at 224; see Art. II, §1. The Constitution provides

that “the Vice President shall become President” in the case 

of “the removal of the President from office or of his death 

or resignation.” Amdt. 25, §1. It also “empowers the Vice

President, together with a majority of the ‘principal officers 
 

22 TRUMP v. UNITED STATES 

Opinion of the Court 

of the executive departments,’ to declare the President ‘unable to discharge the powers and duties of his office.’” Freytag v. Commissioner, 501 U. S. 868, 886–887 (1991) (quoting Amdt. 25, §4). And Article I of course names the Vice 

President as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the President to discuss official matters with the Vice President to 

ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond.

The Vice President may in practice also serve as one of 

the President’s closest advisers. The Office of Legal Counsel has explained that within the Executive Branch, the 

Vice President’s “sole function [is] advising and assisting 

the President.” Whether the Office of the Vice President Is 

an ‘Agency’ for Purposes of the Freedom of Information Act,

18 Op. OLC 10 (1994). Indeed, the “Twelfth Amendment 

was brought about” to avoid the “manifestly intolerable” situation that occurred “[d]uring the John Adams administration,” when “we had a President and Vice-President of different parties.” Ray v. Blair, 343 U. S. 214, 224, n. 11 

(1952). The President and Vice President together “are the

senior officials of the Executive Branch of government” and 

therefore “must formulate, explain, advocate, and defend 

policies” of the President’s administration. Payment of Expenses Associated With Travel by the President and Vice 

President, 6 Op. OLC 214, 215 (1982). 

As the President’s second in command, the Vice President 

has historically performed important functions “at the will

and as the representative of the President.” Participation

of the Vice President in the Affairs of the Executive Branch, 

1 Supp. Op. OLC 214, 220 (1961). President Woodrow Wilson’s Vice President, for instance, “presided over a few cabinet meetings while Wilson was in France negotiating” the

Treaty of Versailles after World War I. H. Relyea, The Law: 

The Executive Office of the Vice President: Constitutional 

and Legal Considerations, 40 Presidential Studies Q. 327, 
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Opinion of the Court 

328 (2010). During President Franklin Roosevelt’s administration, the Vice President “became a regular participant

in cabinet deliberations—a practice that was continued by 

each succeeding president.” Ibid. And when President 

Dwight Eisenhower “suffered three major illnesses while in 

office . . . Vice President Richard Nixon consulted with the 

Cabinet and developed a procedure for relaying important 

matters to the President.” Presidential Succession and Delegation in Case of Disability, 5 Op. OLC 91, 102 (1981). At 

the President’s discretion, “the Vice President may engage

in activities ranging into the highest levels of diplomacy

and negotiation and may do so anywhere in the world.” 1 

Supp. Op. OLC, at 220. Domestically, he may act as the

President’s delegate to perform any duties “co-extensive

with the scope of the President’s power of delegation.” Ibid. 

Whenever the President and Vice President discuss their 

official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which

Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, 

§1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President 

to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and

Trump is at least presumptively immune from prosecution

for such conduct. 

The question then becomes whether that presumption of

immunity is rebutted under the circumstances. When the 

Vice President presides over the January 6 certification 

proceeding, he does so in his capacity as President of the

Senate. Ibid. Despite the Vice President’s expansive role

of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of 

“presiding over the Senate” is “not an ‘executive branch’

function.” Memorandum from L. Silberman, Deputy Atty.

Gen., to R. Burress, Office of the President, Re: Conflict of 
 

24 TRUMP v. UNITED STATES 

Opinion of the Court 

Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under 

the Twenty-Fifth Amendment to the Constitution 2 (Aug.

28, 1974). With respect to the certification proceeding in

particular, Congress has legislated extensively to define the

Vice President’s role in the counting of the electoral votes, 

see, e.g., 3 U. S. C. §15, and the President plays no direct 

constitutional or statutory role in that process. So the Government may argue that consideration of the President’s 

communications with the Vice President concerning the 

certification proceeding does not pose “dangers of intrusion

on the authority and functions of the Executive Branch.” 

Fitzgerald, 457 U. S., at 754; see supra, at 14. 

At the same time, however, the President may frequently

rely on the Vice President in his capacity as President of the 

Senate to advance the President’s agenda in Congress. 

When the Senate is closely divided, for instance, the Vice

President’s tiebreaking vote may be crucial for confirming

the President’s nominees and passing laws that align with 

the President’s policies. Applying a criminal prohibition to

the President’s conversations discussing such matters with 

the Vice President—even though they concern his role as 

President of the Senate—may well hinder the President’s

ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the 

presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate

input from the parties, whether a prosecution involving 

Trump’s alleged attempts to influence the Vice President’s

oversight of the certification proceeding in his capacity as

President of the Senate would pose any dangers of intrusion

on the authority and functions of the Executive Branch. 

3 

The indictment’s remaining allegations cover a broad

range of conduct. Unlike the allegations describing 
Cite as: 603 U. S. ____ (2024) 25 

Opinion of the Court 

Trump’s communications with the Justice Department and

the Vice President, these remaining allegations involve 

Trump’s interactions with persons outside the Executive

Branch: state officials, private parties, and the general public. Many of the remaining allegations, for instance, cover

at great length events arising out of communications that

Trump and his co-conspirators initiated with state legislators and election officials in Arizona, Georgia, Michigan, 

Pennsylvania, and Wisconsin regarding those States’ certification of electors. See App. 192–207, Indictment ¶¶13–

52. 

Specifically, the indictment alleges that Trump and his

co-conspirators attempted to convince those officials that

election fraud had tainted the popular vote count in their 

States, and thus electoral votes for Trump’s opponent 

needed to be changed to electoral votes for Trump. See id., 

at 185–186, ¶10(a). After Trump failed to convince those

officials to alter their state processes, he and his co-conspirators 

allegedly developed a plan “to marshal individuals who 

would have served as [Trump’s] electors, had he won the 

popular vote” in Arizona, Georgia, Michigan, Nevada, New 

Mexico, Pennsylvania, and Wisconsin, “and cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors.” 

Id., at 208, ¶53. If the plan worked, “the submission of 

these fraudulent slates” would position the Vice President 

to “open and count the fraudulent votes” at the certification

proceeding and set up “a fake controversy that would derail

the proper certification of Biden as president-elect.” Id., at 

208–209, ¶¶53, 54(b). According to the indictment, Trump 

used his campaign staff to effectuate the plan. See, e.g., id., 

at 210, 212–213, ¶¶55, 63. On the same day that the legitimate electors met in their respective jurisdictions to cast

their votes, the indictment alleges that Trump’s “fraudulent electors convened sham proceedings in the seven tar-
 

26 TRUMP v. UNITED STATES 

Opinion of the Court 

geted states to cast fraudulent electoral ballots” in his favor. Id., at 214, ¶66. Those ballots “were mailed to the 

President of the Senate, the Archivist of the United States, 

and others.” Ibid., ¶67.

At oral argument, Trump appeared to concede that at

least some of these acts—those involving “private actors”

who “helped implement a plan to submit fraudulent slates 

of presidential electors to obstruct the certification proceeding” at the direction of Trump and a co-conspirator—entail

“private” conduct. Tr. of Oral Arg. 29–30. He later asserted, however, that asking “the chairwoman of the Republican National Committee . . . to gather electors” qualifies

as official conduct because “the organization of alternate

slates of electors is based on, for example, the historical example of President Grant as something that was done pursuant to and ancillary and preparatory to the exercise of ” a

core Presidential power. Id., at 37; see also id., at 25 (discussing the “historical precedent . . . of President Grant 

sending federal troops to Louisiana and Mississippi in 1876

to make sure that the Republican electors got certified in

those two cases, which delivered the election to Rutherford 

B. Hayes”). He also argued that it is “[a]bsolutely an official

act for the president to communicate with state officials on 

. . . the integrity of a federal election.” Id., at 38. The Government disagreed, contending that this alleged conduct 

does not qualify as “official conduct” but as “campaign conduct.” Id., at 124–125. 

On Trump’s view, the alleged conduct qualifies as official 

because it was undertaken to ensure the integrity and 

proper administration of the federal election. Of course, the 

President’s duty to “take Care that the Laws be faithfully 

executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern

does not exclude his public communications regarding the 

fairness and integrity of federal elections simply because he 
 

 

Cite as: 603 U. S. ____ (2024) 27 

Opinion of the Court 

is running for re-election. Cf. Hawaii, 585 U. S., at 701. 

Similarly, the President may speak on and discuss such 

matters with state officials—even when no specific federal

responsibility requires his communication—to encourage

them to act in a manner that promotes the President’s view 

of the public good. 

As the Government sees it, however, these allegations encompass nothing more than Trump’s “private scheme with

private actors.” Brief for United States 44. In its view, 

Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of

electors but also cause those electors—unapproved by any 

state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors. 

Indeed, the Constitution commits to the States the power

to “appoint” Presidential electors “in such Manner as the

Legislature thereof may direct.” Art. II, §1, cl. 2; see Burroughs v. United States, 290 U. S. 534, 544 (1934). “Article 

II, §1’s appointments power,” we have said, “gives the

States far-reaching authority over presidential electors, absent some other constitutional constraint.” Chiafalo v. 

Washington, 591 U. S. 578, 588–589 (2020). By contrast,

the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed 

electors shall meet, and it counts and certifies their votes. 

Art. II, §1, cls. 3, 4. The President, meanwhile, plays no 

direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of 

“cabal, intrigue and corruption,” specifically excluded from

service as electors “all those who from situation might be 

suspected of too great devotion to the president in office.” 

The Federalist No. 68, at 459 (A. Hamilton); see Art. II, §1,

cl. 2. 

Determining whose characterization may be correct, and

with respect to which conduct, requires a close analysis of 
 

 

28 TRUMP v. UNITED STATES 

Opinion of the Court 

the indictment’s extensive and interrelated allegations. 

See App. 192–215, Indictment ¶¶13–69. Unlike Trump’s

alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within

a particular Presidential function. The necessary analysis

is instead fact specific, requiring assessment of numerous 

alleged interactions with a wide variety of state officials 

and private persons. And the parties’ brief comments at 

oral argument indicate that they starkly disagree on the 

characterization of these allegations. The concerns we 

noted at the outset—the expedition of this case, the lack of 

factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing

we lack—whether Trump’s conduct in this area qualifies as

official or unofficial. 

4 

Finally, the indictment contains various allegations regarding Trump’s conduct in connection with the events of 

January 6 itself. It alleges that leading up to the January 

6 certification proceeding, Trump issued a series of Tweets 

(to his nearly 89 million followers) encouraging his supporters to travel to Washington, D. C., on that day. See, e.g., 

App. 221, 225–227, Indictment ¶¶87–88, 96, 100. Trump 

and his co-conspirators addressed the gathered public that

morning, asserting that certain States wanted to recertify

their electoral votes and that the Vice President had the 

power to send those States’ ballots back for recertification. 

Id., at 228–230, ¶¶103–104. Trump then allegedly “directed the crowd in front of him to go to the Capitol” to pressure the Vice President to do so at the certification proceeding. Id., at 228–230, ¶104. When it became public that the 

Vice President would not use his role at the certification 

proceeding to determine which electoral votes should be 
Cite as: 603 U. S. ____ (2024) 29 

Opinion of the Court 

counted, the crowd gathered at the Capitol “broke through 

barriers cordoning off the Capitol grounds” and eventually 

“broke into the building.” Id., at 230–231, ¶¶107, 109.

The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The 

President possesses “extraordinary power to speak to his

fellow citizens and on their behalf.” Hawaii, 585 U. S., at 

701; cf. Lindke v. Freed, 601 U. S. 187, 191 (2024). As the 

sole person charged by the Constitution with executing the 

laws of the United States, the President oversees—and thus 

will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans,

including by speaking forcefully or critically, in ways that

the President believes would advance the public interest. 

He is even expected to comment on those matters of public 

concern that may not directly implicate the activities of the 

Federal Government—for instance, to comfort the Nation 

in the wake of an emergency or tragedy. For these reasons, 

most of a President’s public communications are likely to 

fall comfortably within the outer perimeter of his official responsibilities.

There may, however, be contexts in which the President, 

notwithstanding the prominence of his position, speaks in 

an unofficial capacity—perhaps as a candidate for office or 

party leader. To the extent that may be the case, objective

analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 

(2011) (internal quotation marks omitted). But “there is not 

always a clear line between [the President’s] personal and 

official affairs.” Mazars, 591 U. S., at 868. The analysis

therefore must be fact specific and may prove to be challenging.

The indictment reflects these challenges. It includes only 
 

30 TRUMP v. UNITED STATES 

Opinion of the Court 

select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or 

context. See App. 228–230, Indictment ¶104. Whether the 

Tweets, that speech, and Trump’s other communications on

January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else

was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic

communications and in organizing the rally, could be relevant to the classification of each communication. This necessarily factbound analysis is best performed initially by 

the District Court. We therefore remand to the District 

Court to determine in the first instance whether this alleged conduct is official or unofficial. 

C 

The essence of immunity “is its possessor’s entitlement 

not to have to answer for his conduct” in court. Mitchell, 

472 U. S., at 525. Presidents therefore cannot be indicted 

based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at

least some such conduct. See Part III–B–1, supra. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too 

involve conduct for which a President must be immune from 

prosecution. And the parties and the District Court must 

ensure that sufficient allegations support the indictment’s

charges without such conduct.

The Government does not dispute that if Trump is entitled to immunity for certain official acts, he may not “be

held criminally liable” based on those acts. Brief for United 

States 46. But it nevertheless contends that a jury could 

“consider” evidence concerning the President’s official acts

“for limited and specified purposes,” and that such evidence 

would “be admissible to prove, for example, [Trump’s]

knowledge or notice of the falsity of his election-fraud 
 

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Opinion of the Court 

claims.” Id., at 46, 48. That proposal threatens to eviscerate the immunity we have recognized. It would permit a

prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on

any charge. But “[t]he Constitution deals with substance, 

not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 

(1867). And the Government’s position is untenable in light

of the separation of powers principles we have outlined.

If official conduct for which the President is immune may

be scrutinized to help secure his conviction, even on charges

that purport to be based only on his unofficial conduct, the 

“intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct 

would be subject to examination by a jury on the basis of 

generally applicable criminal laws. Use of evidence about 

such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the 

President’s official decisionmaking will be distorted. See 

Clinton, 520 U. S., at 694, n. 19. 

The Government asserts that these weighty concerns can

be managed by the District Court through the use of “evidentiary rulings” and “jury instructions.” Brief for United 

States 46. But such tools are unlikely to protect adequately

the President’s constitutional prerogatives. Presidential 

acts frequently deal with “matters likely to ‘arouse the most 

intense feelings.’ ” Fitzgerald, 457 U. S., at 752 (quoting 

Pierson, 386 U. S., at 554). Allowing prosecutors to ask or 

suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the 

jurors’ deliberations will be prejudiced by their views of the

President’s policies and performance while in office. The 

prosaic tools on which the Government would have courts 

rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Cf. Nixon, 418 U. S., at 706. Although such 
 

 

 

 

 

32 TRUMP v. UNITED STATES 

Opinion of the Court 

tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie 

Presidential immunity seek to protect not the President 

himself, but the institution of the Presidency.3 

IV 

A 

Trump asserts a far broader immunity than the limited 

one we have recognized. He contends that the indictment 

must be dismissed because the Impeachment Judgment 

Clause requires that impeachment and Senate conviction

precede a President’s criminal prosecution. Brief for Petitioner 16. 

The text of the Clause provides little support for such an 

absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, 

and disqualification to hold and enjoy any Office of honor,

Trust or Profit under the United States.” Art. I, §3, cl. 7. It 

then specifies that “the Party convicted shall nevertheless 

be liable and subject to Indictment, Trial, Judgment and

Punishment, according to Law.” Ibid. (emphasis added). 

—————— 3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for 

instance, excluding “any mention” of the official act associated with the

bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring 

in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the 

prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence

of what the President allegedly demanded, received, accepted, or agreed

to receive or accept in return for being influenced in the performance of 

the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, 

however, is admit testimony or private records of the President or his 

advisers probing the official act itself. Allowing that sort of evidence 

would invite the jury to inspect the President’s motivations for his official

actions and to second-guess their propriety. As we have explained, such

inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the 

President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 

756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 

18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020). 
 

 

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Opinion of the Court 

The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such

judgment, subsequent prosecution may proceed. By its own

terms, the Clause does not address whether and on what 

conduct a President may be prosecuted if he was never impeached and convicted.

Historical evidence likewise lends little support to

Trump’s position. For example, Justice Story reasoned that 

without the Clause’s clarification that “Indictment, Trial, 

Judgment and Punishment” may nevertheless follow Senate conviction, “it might be matter of extreme doubt,

whether . . . a second trial for the same offence could be had, 

either after an acquittal, or a conviction in the court of impeachments.” 2 J. Story, Commentaries on the Constitution of the United States §780, p. 251 (1833). James Wilson, 

who served on the Committee that drafted the Clause and 

later as a Justice of this Court, similarly concluded that acquittal of impeachment charges posed no bar to subsequent 

prosecution. See 2 Documentary History of the Ratification 

of the Constitution 492 (M. Jensen ed. 1979). And contrary

to Trump’s contention, Alexander Hamilton did not disagree. The Federalist Papers on which Trump relies, see 

Brief for Petitioner 17–18, concerned the checks available 

against a sitting President. Hamilton noted that unlike 

“the King of Great-Britain,” the President “would be liable

to be impeached” and “removed from office,” and “would afterwards be liable to prosecution and punishment.” The 

Federalist No. 69, at 463; see also id., No. 77, at 520 (explaining that the President is “at all times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent prosecution”).

Hamilton did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution.

The implication of Trump’s theory is that a President who

evades impeachment for one reason or another during his 
 

 

34 TRUMP v. UNITED STATES 

Opinion of the Court 

term in office can never be held accountable for his criminal 

acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, 

or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever 

remain impervious to prosecution.

Impeachment is a political process by which Congress can

remove a President who has committed “Treason, Bribery,

or other high Crimes and Misdemeanors.” Art. II, §4. 

Transforming that political process into a necessary step in 

the enforcement of criminal law finds little support in the 

text of the Constitution or the structure of our Government. 

B 

The Government for its part takes a similarly broad view, 

contending that the President enjoys no immunity from

criminal prosecution for any action. It maintains this view 

despite agreeing with much of our analysis.

For instance, the Government does not dispute that Congress may not criminalize Presidential conduct within the

President’s “conclusive and preclusive” constitutional authority. See Tr. of Oral Arg. 133 (“[C]ore powers . . . can’t 

be regulated at all, like the pardon power and veto.”); see

also id., at 84–85. And it too accords protection to Presidential conduct if subjecting that conduct to generally applicable laws would “raise serious constitutional questions regarding the President’s authority” or cause a “possible

conflict with the President’s constitutional prerogatives.”

Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 351–352 (1995);

see Brief for United States 26–29; Tr. of Oral Arg. 78. Indeed, the Executive Branch has long held that view. The 

Office of Legal Counsel has recognized, for instance, that a

federal statute generally prohibiting appointments to “‘any 

office or duty in any court’” of persons within certain degrees of consanguinity to the judges of such courts would, if 
Cite as: 603 U. S. ____ (2024) 35 

Opinion of the Court 

applied to the President, infringe his power to appoint federal judges, thereby raising a serious constitutional question. 19 Op. OLC, at 350 (quoting 28 U. S. C. §458); see id., 

at 350–352. So it viewed such a statute as not applying to

the President. Likewise, it has narrowly construed a criminal prohibition on grassroots lobbying to avoid the constitutional issues that would otherwise arise, reasoning that 

the statute should not “be construed to prohibit the President or executive branch agencies from engaging in a general open dialogue with the public on the Administration’s 

programs and policies.” Constraints Imposed by 18 U. S. C.

§1913 on Lobbying Efforts, 13 Op. OLC 300, 304 (1989); see 

id., at 304–306. 

The Government thus broadly agrees that the President’s 

official acts are entitled to some degree of constitutional 

protection. And with respect to the allegations in the indictment before us, the Government agrees that at least 

some of the alleged conduct involves official acts. See Tr. of 

Oral Arg. 125; cf. id., at 128. 

Yet the Government contends that the President should 

not be considered immune from prosecution for those official acts. See Brief for United States 9. On the Government’s view, as-applied challenges in the course of the trial

suffice to protect Article II interests, and review of a district

court’s decisions on such challenges should be deferred until after trial. See Tr. of Oral Arg. 69, 79–80, 154–158. If 

the President is instead immune from prosecution, a district court’s denial of immunity would be appealable before

trial. See Mitchell, 472 U. S., at 524–530 (explaining that 

questions of immunity are reviewable before trial because 

the essence of immunity is the entitlement not to be subject

to suit).

The Government asserts that the “[r]obust safeguards”

available in typical criminal proceedings alleviate the need 

for pretrial review. Brief for United States 20 (boldface and 
 

36 TRUMP v. UNITED STATES 

Opinion of the Court 

emphasis omitted). First, it points to the Justice Department’s “longstanding commitment to the impartial enforcement of the law,” id., at 21, as well as the criminal justice

system’s further protections: grand juries, a defendant’s

procedural rights during trial, and the requirement that the 

Government prove its case beyond a reasonable doubt, id., 

at 22. Next, it contends that “existing principles of statutory construction and as-applied constitutional challenges” 

adequately address the separation of powers concerns involved in applying generally applicable criminal laws to a 

President. Id., at 29. Finally, the Government cites certain

defenses that would be available to the President in a particular prosecution, such as the public-authority defense or 

the advice of the Attorney General. Id., at 29–30; see Nardone v. United States, 302 U. S. 379, 384 (1937); Tr. of Oral 

Arg. 107–108. 

These safeguards, though important, do not alleviate the

need for pretrial review. They fail to address the fact that 

under our system of separated powers, criminal prohibitions cannot apply to certain Presidential conduct to begin 

with. As we have explained, when the President acts pursuant to his exclusive constitutional powers, Congress cannot—as a structural matter—regulate such actions, and

courts cannot review them. See Part II–A, supra. And he 

is at least presumptively immune from prosecution for his

other official actions. See Part II–B, supra. 

Questions about whether the President may be held liable for particular actions, consistent with the separation of

powers, must be addressed at the outset of a proceeding. 

Even if the President were ultimately not found liable for

certain official actions, the possibility of an extended proceeding alone may render him “unduly cautious in the discharge of his official duties.” Fitzgerald, 457 U. S., at 752, 

n. 32. Vulnerability “‘to the burden of a trial and to the

inevitable danger of its outcome, would dampen the ardor

of all but the most resolute.’” Id., at 752–753, n. 32 (quoting 
 

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Opinion of the Court 

Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949) (Hand, 

L., C. J.)). The Constitution does not tolerate such impediments to “the effective functioning of government.” Fitzgerald, 457 U. S., at 751. 

As for the Government’s assurances that prosecutors and

grand juries will not permit political or baseless prosecutions from advancing in the first place, those assurances are 

available to every criminal defendant and fail to account for 

the President’s “unique position in the constitutional 

scheme.” Id., at 749. We do not ordinarily decline to decide

significant constitutional questions based on the Government’s promises of good faith. See United States v. Stevens, 

559 U. S. 460, 480 (2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”). Nor do we do so today. 

C 

As for the dissents, they strike a tone of chilling doom

that is wholly disproportionate to what the Court actually

does today—conclude that immunity extends to official discussions between the President and his Attorney General, 

and then remand to the lower courts to determine “in the 

first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. Supra, at 24, 

28, 30. 

The principal dissent’s starting premise—that unlike

Speech and Debate Clause immunity, no constitutional text

supports Presidential immunity, see post, at 4–6 (opinion of 

SOTOMAYOR, J.)—is one that the Court rejected decades ago

as “unpersuasive.” Fitzgerald, 457 U. S., at 750, n. 31; see 

also Nixon, 418 U. S., at 705–706, n. 16 (rejecting unanimously a similar argument in the analogous executive privilege context). “[A] specific textual basis has not been considered a prerequisite to the recognition of immunity.” 

Fitzgerald, 457 U. S., at 750, n. 31. Nor is that premise correct. True, there is no “Presidential immunity clause” in 
 

38 TRUMP v. UNITED STATES 

Opinion of the Court 

the Constitution. But there is no “‘separation of powers 

clause’” either. Seila Law, 591 U. S., at 227. Yet that doctrine is undoubtedly carved into the Constitution’s text by

its three articles separating powers and vesting the Executive power solely in the President. See ibid. And the 

Court’s prior decisions, such as Nixon and Fitzgerald, have 

long recognized that doctrine as mandating certain Presidential privileges and immunities, even though the Constitution contains no explicit “provision for immunity.” Post, 

at 4; see Part II–B–1, supra. Neither the dissents nor the 

Government disavow any of those prior decisions. See Tr. 

of Oral Arg. 76–77. 

The principal dissent then cites the Impeachment Judgment Clause, arguing that it “clearly contemplates that a

former President may be subject to criminal prosecution.” 

Post, at 6. But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular. See 

supra, at 32–33. And the assortment of historical sources 

the principal dissent cites are unhelpful for the same reason. See post, at 6–8. As the Court has previously noted, 

relevant historical evidence on the question of Presidential 

immunity is of a “fragmentary character.” Fitzgerald, 457 

U. S., at 752, n. 31; see also Clinton, 520 U. S., at 696–697; 

cf. Youngstown, 343 U. S., at 634 (Jackson, J., concurring) 

(noting “the poverty of really useful and unambiguous authority applicable to concrete problems of executive

power”). “[T]he most compelling arguments,” therefore, 

“arise from the Constitution’s separation of powers and the 

Judiciary’s historic understanding of that doctrine.” Fitzgerald, 457 U. S., at 752, n. 31. 

The Court’s prior admonition is evident in the principal

dissent’s citations. Some of its cherry-picked sources do not

even discuss the President in particular. See, e.g., post, at 

7–8 (citing 2 Debates on the Constitution 177 (J. Elliot ed. 

1836); 2 J. Story, Commentaries on the Constitution of the 
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Opinion of the Court 

United States §780, pp. 250–251 (1833)). And none of them 

indicate whether he may be prosecuted for his official conduct. See, e.g., post, at 6, 7, n. 2 (citing The Federalist No. 

69; 4 Debates on the Constitution, at 109). The principal

dissent’s most compelling piece of evidence consists of excerpted statements of Charles Pinckney from an 1800 Senate debate. See post, at 7. But those statements reflect only 

the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist. See 

3 Records of the Federal Convention of 1787, pp. 384–385

(M. Farrand ed. 1911). And Pinckney is not exactly a reliable authority on the separation of powers: He went on to

state on the same day that “it was wrong to give the nomination of Judges to the President”—an opinion expressly rejected by the Framers. Id., at 385. Given the Framers’ desire for an energetic and vigorous President, the principal 

dissent’s view that the Constitution they designed allows

all his actions to be subject to prosecution—even the exercise of powers it grants exclusively to him—defies credulity.

Unable to muster any meaningful textual or historical

support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 

9. Conspicuously absent is mention of the fact that since

the founding, no President has ever faced criminal 

charges—let alone for his conduct in office. And accordingly

no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s 

practice establishes on the subject is silence. 

Coming up short on reasoning, the dissents repeatedly

level variations of the accusation that the Court has rendered the President “above the law.” See, e.g., post, at 1, 3, 

11, 12, 21, 30 (opinion of SOTOMAYOR, J.); post, at 9, 10, 11, 

12, 13, 19 (opinion of JACKSON, J.). As before, that “rhetorically chilling” contention is “wholly unjustified.” Fitzger-
 

40 TRUMP v. UNITED STATES 

Opinion of the Court 

ald, 457 U. S., at 758, n. 41. Like everyone else, the President is subject to prosecution in his unofficial capacity. But 

unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers

and duties. Accounting for that reality—and ensuring that 

the President may exercise those powers forcefully, as the 

Framers anticipated he would—does not place him above 

the law; it preserves the basic structure of the Constitution

from which that law derives. 

The dissents’ positions in the end boil down to ignoring

the Constitution’s separation of powers and the Court’s 

precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President 

“feels empowered to violate federal criminal law.” Post, at 

18 (opinion of SOTOMAYOR, J.); see post, at 26, 29–30; post, 

at 8–9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dissents overlook the more likely prospect of an Executive 

Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly 

and fearlessly carry out his duties for fear that he may be 

next. For instance, Section 371—which has been charged 

in this case—is a broadly worded criminal statute that can 

cover “‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’” United States v. Johnson, 383 U. S. 

169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 

(1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, 

gun, immigration, or environmental laws). An enterprising

prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could

quickly become routine. The enfeebling of the Presidency 

and our Government that would result from such a cycle of 

factional strife is exactly what the Framers intended to 
 

Cite as: 603 U. S. ____ (2024) 41 

Opinion of the Court 

avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated 

powers up to the good faith of prosecutors.

Finally, the principal dissent finds it “troubling” that the 

Court does not “designate any course of conduct alleged in

the indictment as private.” Post, at 27. Despite the unprecedented nature of this case, the significant constitutional 

questions that it raises, its expedited treatment in the lower 

courts and in this Court, the lack of factual analysis in the 

lower courts, and the lack of briefing on how to categorize

the conduct alleged, the principal dissent would go ahead 

and declare all of it unofficial. The other dissent, meanwhile, analyzes the case under comprehensive models and 

paradigms of its own concoction and accuses the Court of

providing “no meaningful guidance about how to apply [the] 

new paradigm or how to categorize a President’s conduct.” 

Post, at 13 (opinion of JACKSON, J.). It would have us exhaustively define every application of Presidential immunity. See post, at 13–14. Our dissenting colleagues exude an

impressive infallibility. While their confidence may be inspiring, the Court adheres to time-tested practices instead—deciding what is required to dispose of this case and

remanding after “revers[ing] on a threshold question,” Zivotofsky, 566 U. S., at 201, to obtain “guidance from the litigants [and] the court below,” Vidal v. Elster, 602 U. S. 286, 

328 (2024) (SOTOMAYOR, J., concurring in judgment). 

V 

This case poses a question of lasting significance: When 

may a former President be prosecuted for official acts taken

during his Presidency? Our Nation has never before needed 

an answer. But in addressing that question today, unlike 

the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation 
 

42 TRUMP v. UNITED STATES 

Opinion of the Court 

of powers and for the future of our Republic. Youngstown, 

343 U. S., at 634 (Jackson, J., concurring). Our perspective

must be more farsighted, for “[t]he peculiar circumstances

of the moment may render a measure more or less wise, but 

cannot render it more or less constitutional.” Chief Justice 

John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of 

McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). 

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation 

that “a Government of as much vigour as is consistent with

the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A 

government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of

“alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the 

way to avoid that cycle, he explained, was to ensure that 

government powers remained “properly distributed and adjusted.” Id., at 226. 

It is these enduring principles that guide our decision in 

this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. 

The President is not above the law. But Congress may not 

criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the

Framers has always demanded an energetic, independent 

Executive. The President therefore may not be prosecuted 

for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies

equally to all occupants of the Oval Office, regardless of politics, policy, or party.

The judgment of the Court of Appeals for the D. C. Circuit

is vacated, and the case is remanded for further proceedings 
Cite as: 603 U. S. ____ (2024) 43 

Opinion of the Court 

consistent with this opinion. 

It is so ordered. 
 

_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 23–939 

DONALD J. TRUMP, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[July 1, 2024]

 JUSTICE THOMAS, concurring. 

Few things would threaten our constitutional order more

than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us

to chart such a dangerous course. As the Court forcefully

explains, the Framers “deemed an energetic executive essential to . . . the security of liberty,” and our “system of separated powers” accordingly insulates the President from 

prosecution for his official acts. Ante, at 10, 42 (internal 

quotation marks omitted). To conclude otherwise would 

hamstring the vigorous Executive that our Constitution envisions. “While the separation of powers may prevent us 

from righting every wrong, it does so in order to ensure that 

we do not lose liberty.” Morrison v. Olson, 487 U. S. 654, 

710–711 (1988) (Scalia, J., dissenting).

I write separately to highlight another way in which this

prosecution may violate our constitutional structure. In 

this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that 

any office for the Special Counsel has been “established by 

Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the 

Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is 
 

2 TRUMP v. UNITED STATES 

THOMAS, J., concurring 

no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a

former President. 

No former President has faced criminal prosecution for 

his acts while in office in the more than 200 years since the 

founding of our country. And, that is so despite numerous

past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to 

do so by the American people. The lower courts should thus 

answer these essential questions concerning the Special

Counsel’s appointment before proceeding. 

I 

The Constitution sets forth how an office may be created 

and how it may be filled. The Appointments Clause provides: 

“[The President] shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges

of the supreme Court, and all other Officers of the

United States, whose Appointments are not herein otherwise provided for, and which shall be established by

Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in 

the President alone, in the Courts of Law, or in the 

Heads of Department.” Art. II, §2, cl. 2. 

The constitutional process for filling an office is plain

from this text. The default manner for appointing “Officers

of the United States” is nomination by the President and 

confirmation by the Senate. Ibid. “But the Clause provides

a limited exception for the appointment of inferior officers: 

Congress may ‘by Law’ authorize” one of three specified ac-
 

 

 

Cite as: 603 U. S. ____ (2024) 3 

THOMAS, J., concurring 

tors “to appoint inferior officers without the advice and consent of the Senate.” NLRB v. SW General, Inc., 580 U. S. 

288, 312 (2017) (THOMAS, J., concurring). As relevant here, 

a “Hea[d] of Department”—such as the Attorney General—

is one such actor that Congress may authorize “by Law” to

appoint inferior officers without senatorial confirmation.

Art. II, §2, cl. 2.

Before the President or a Department Head can appoint

any officer, however, the Constitution requires that the underlying office be “established by Law.”1 The Constitution 

itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution 

contemplates that there will be “other Officers of the United 

States, whose Appointments are not herein otherwise provided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.” Lucia 

v. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring); 

see also United States v. Maurice, 26 F. Cas. 1211, 1213 

(No. 15,747) (CC Va. 1823) (Marshall, C. J.).

The limitation on the President’s power to create offices 

grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically

and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices.” The Federalist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W.

Blackstone, Commentaries on the Laws of England 271 (T. 

—————— 1Although a Government official may also be a “nonofficer employe[e],” 

I set aside that category because it is difficult to see how an official exercising the Department of Justice’s duties to enforce the criminal law by 

leading a prosecution could be anything but an officer. Lucia v. SEC, 

585 U. S. 237, 253, n. 1 (2018) (THOMAS, J., concurring); see SW General, 

580 U. S., at 314 (opinion of THOMAS, J.). If the Special Counsel were a 

nonofficer employee, the constitutional problems with this prosecution 

would only be more serious. For now, I assume without deciding that the

Special Counsel is an officer. 
 

 

4 TRUMP v. UNITED STATES 

THOMAS, J., concurring 

Cooley ed. 1871) (“[A]s the king may create new titles, so 

may he create new offices”). That ability to create offices

raised many “concerns about the King’s ability to amass too 

much power”; the King could both create a multitude of offices and then fill them with his supporters. J. Mascott, 

Who Are “Officers of the United States”? 70 Stan. L. Rev. 

443, 492 (2018) (Mascott); see also G. Wood, The Creation 

of the American Republic 1776–1787, p. 143 (1969) (describing “the power of appointment to offices” as “the most insidious and powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The 

Great Works of Thomas Paine 11 (1877) (explaining that 

“the crown . . . derives its whole consequence merely from 

being the giver of places and pensions”). In fact, one of the 

grievances raised by the American colonists in declaring 

their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to 

harass our people and eat out their substance.” Declaration 

of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of

the President, in this particular, to that of the British king.”

The Federalist No. 69, at 421. 

The Founders broke from the monarchial model by giving 

the President the power to fill offices (with the Senate’s approval), but not the power to create offices. They did so by

“imposing the constitutional requirement that new officer 

positions be ‘established by Law’ rather than through a 

King-like custom of the head magistrate unilaterally creating new offices.” Mascott 492–493 (footnote omitted); see

also 1 Annals of Cong. 581–582 (1789) (“The powers relative 

to offices are partly Legislative and partly Executive. The 

Legislature creates the office, defines the powers, limits its

duration, and annexes a compensation”); see also ibid. (describing the power to “designat[e] the man to fill the office”

as “of an Executive nature”). The Constitution thus “giv[es] 
Cite as: 603 U. S. ____ (2024) 5 

THOMAS, J., concurring 

Congress broad authority to establish and organize the Executive Branch.” Seila Law LLC v. Consumer Financial 

Protection Bureau, 591 U. S. 197, 266 (2020) (KAGAN, J., 

concurring in judgment in part and dissenting in part). By

keeping the ability to create offices out of the President’s 

hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with 

his supporters. Instead, our Constitution leaves it in the 

hands of the people’s elected representatives to determine 

whether new executive offices should exist. 

Longstanding practice from the founding to today comports with this original understanding that Congress must 

create offices by law. The First Congress, for instance, routinely and explicitly created offices by statute. See, e.g., 

§35, 1 Stat. 92–93 (creating the offices of Attorney General

and U. S. Attorney for each district); see also §§1–2, id., at 

50 (creating offices of Secretary of War and his Chief Clerk);

ch. 12, §1, id., at 65 (creating offices within the Department

of Treasury for Secretary of the Treasury, a Comptroller,

Auditor, Treasurer, Register, and Assistant to the Secretary). Still today, Congress creates the offices that the Executive Branch may fill. For example, Congress has created

several offices within the Department of Justice, including

the offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, and Assistant Attorneys General. See 28 U. S. C. §§503–506. For 

some agencies, Congress has also granted the agency head 

the power to “appoint such officers and employees . . . as are 

necessary to execute the functions vested in him.” 7 

U. S. C. §610(a) (Department of Agriculture); see also, e.g., 

20 U. S. C. §3461 (Department of Education); 42 U. S. C. 

§913 (Department of Health and Human Services). 

In the past, Congress has at times expressly created offices similar to the position now occupied by the Special

Counsel. Congress created an office for a “special counsel” 
 

 

6 TRUMP v. UNITED STATES 

THOMAS, J., concurring 

to investigate the Teapot Dome Scandal and pursue prosecutions. See ch. 16, 43 Stat. 6. And, a statute provided for 

“the appointment of an independent counsel” that we addressed in Morrison v. Olson. See 28 U. S. C. §592. That 

statute lapsed, and Congress has not since reauthorized the 

appointment of an independent counsel. See §599.2 

We cannot ignore the importance that the Constitution 

places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is 

any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus

that a particular office should exist, the Executive lacks the 

power to create and fill an office of his own accord. 

II 

It is difficult to see how the Special Counsel has an office

“established by Law,” as required by the Constitution. 

When the Attorney General appointed the Special Counsel, 

he did not identify any statute that clearly creates such an

office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 

2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of 

some other agencies have.3 See supra, at 5. Instead, the 

Attorney General relied upon several statutes of a general 

nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 

510, 515, 533). 

—————— 2To be sure, a few Presidents have appointed “special prosecutors”

without pointing to any express statutory authorization. See generally

T. Eastland, Ethics, Politics and the Independent Counsel 8–9 (1989) (describing past uses of special prosecutors). But, this Court had no occasion to review the constitutionality of those prosecutors’ authority. 3 In fact, Congress gave the Attorney General the power to appoint “additional officers . . . as he deems necessary”—but, only for the Bureau of 

Prisons. 18 U. S. C. §4041. 
Cite as: 603 U. S. ____ (2024) 7 

THOMAS, J., concurring 

None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for

that purpose. See, e.g., 43 Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel

who shall have charge and control of the prosecution of such

litigation”). Sections 509 and 510 are generic provisions

concerning the functions of the Attorney General and his

ability to delegate authority to “any other officer, employee, 

or agency.” Section 515 contemplates an “attorney specially

appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already

been created by some other law. (Emphasis added.) As for 

§533, it provides that “[t]he Attorney General may appoint 

officials . . . to detect and prosecute crimes against the 

United States.” (Emphasis added.) It is unclear whether 

an “official” is equivalent to an “officer” as used by the Constitution. See Lucia, 585 U. S., at 254–255 (opinion of 

THOMAS, J.) (considering the meaning of “officer”). Regardless, this provision would be a curious place for Congress to 

hide the creation of an office for a Special Counsel. It is 

placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).4 

To be sure, the Court gave passing reference to the cited

statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974),

but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an 

office for the Special Counsel. But, before this consequen-

—————— 4Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a

federal office without underlying statutory authority to do so. 
 

8 TRUMP v. UNITED STATES 

THOMAS, J., concurring 

tial prosecution proceeds, we should at least provide a fulsome explanation of why that is so. 

Even if the Special Counsel has a valid office, questions 

remain as to whether the Attorney General filled that office 

in compliance with the Appointments Clause. For example,

it must be determined whether the Special Counsel is a 

principal or inferior officer. If the former, his appointment

is invalid because the Special Counsel was not nominated

by the President and confirmed by the Senate, as principal

officers must be. Art. II, §2, cl. 2. Even if he is an inferior 

officer, the Attorney General could appoint him without 

Presidential nomination and senatorial confirmation only if

“Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the 

Special Counsel’s appointment is invalid unless a statute

created the Special Counsel’s office and gave the Attorney 

General the power to fill it “by Law.”

Whether the Special Counsel’s office was “established by

Law” is not a trifling technicality. If Congress has not

reached a consensus that a particular office should exist,

the Executive lacks the power to unilaterally create and

then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, 

the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a 

just Government” and the liberty that it secures for us all. 

Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is 

no prosecution that can justify imperiling it. 

* * * 

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the 

Court explains, the President’s immunity from prosecution 

for his official acts is the law. The Constitution provides for 
Cite as: 603 U. S. ____ (2024) 9 

THOMAS, J., concurring 

“an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal 

quotation marks omitted). Respecting the protections that 

the Constitution provides for the Office of the Presidency

secures liberty. In that same vein, the Constitution also 

secures liberty by separating the powers to create and fill 

offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by

law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its

protection of liberty a parchment guarantee. 
_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

BARRETT, J., concurring in part 

SUPREME COURT OF THE UNITED STATES 

No. 23–939 

DONALD J. TRUMP, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[July 1, 2024]

 JUSTICE BARRETT, concurring in part. 

For reasons I explain below, I do not join Part III–C of the 

Court’s opinion. The remainder of the opinion is consistent

with my view that the Constitution prohibits Congress from 

criminalizing a President’s exercise of core Article II powers 

and closely related conduct. That said, I would have framed 

the underlying legal issues differently. The Court describes 

the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the

constitutionality of a criminal statute as applied to official 

acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling. 

There appears to be substantial agreement on the first

point. Like the Court, the dissenting Justices and the Special Counsel all accept that some prosecutions of a President’s official conduct may be unconstitutional. See post, at 

16 (opinion of SOTOMAYOR, J.); Brief for United States 24– 

30. As for interlocutory review, our precedent recognizes 

that resolving certain legal issues before trial is necessary

to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion.

Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the 
 

2 TRUMP v. UNITED STATES 

BARRETT, J., concurring in part 

possibility that the Constitution forbids prosecuting the 

President for any official conduct, instructing the lower

courts to address that question in the first instance. See 

ante, at 14. I would have answered it now. Though I agree

that a President cannot be held criminally liable for conduct 

within his “conclusive and preclusive” authority and closely 

related acts, ante, at 8–9, the Constitution does not vest 

every exercise of executive power in the President’s sole discretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 

579, 637 (1952) (Jackson, J., concurring).1 Congress has

concurrent authority over many Government functions,

and it may sometimes use that authority to regulate the 

President’s official conduct, including by criminal statute. 

Article II poses no barrier to prosecution in such cases.

I would thus assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the 

President’s core executive power—in two steps. The first 

question is whether the relevant criminal statute reaches

the President’s official conduct. Not every broadly worded 

statute does. For example, §956 covers conspiracy to murder in a foreign country and does not expressly exclude the

President’s decision to, say, order a hostage rescue mission 

abroad. 18 U. S. C. §956(a). The underlying murder statute, however, covers only “unlawful” killings. §1111. The 

Office of Legal Counsel has interpreted that phrase to reflect a public-authority exception for official acts involving 

the military and law enforcement. Memorandum from D. 

Barron, Acting Assistant Atty. Gen., to E. Holder, Atty. 

—————— 1 Consistent with our separation of powers precedent, I agree with the

Court that the supervision and removal of appointed, high ranking Justice Department officials falls within the President’s core executive 

power. See Seila Law LLC v. Consumer Financial Protection Bureau, 

591 U. S. 197, 213–215 (2020); ante, at 19–21. I do not understand the 

Court to hold that all exercises of the Take Care power fall within the 

core executive power. Cf. post, at 24 (SOTOMAYOR, J., dissenting). I agree 

with the dissent that the Constitution does not justify such an expansive

view. Ibid. 
 

 

Cite as: 603 U. S. ____ (2024) 3 

BARRETT, J., concurring in part 

Gen., Re: Applicability of Federal Criminal Laws and the

Constitution to Contemplated Lethal Operations Against 

Shaykh Anwar al-Aulaqi 12–19 (July 16, 2010); see also

Brief for United States 29–30; post, at 16, and n. 3 

(SOTOMAYOR, J., dissenting). I express no view about the

merits of that interpretation, but it shows that the threshold question of statutory interpretation is a nontrivial step. 

If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances

poses no “‘dange[r] of intrusion on the authority and functions of the Executive Branch.’” Ante, at 14 (quoting Nixon 

v. Fitzgerald, 457 U. S. 731, 754 (1982)). On remand, the 

lower courts will have to apply that standard to various allegations involving the President’s official conduct.2 Some 

of those allegations raise unsettled questions about the 

scope of Article II power, see ante, at 21–28, but others do 

not. For example, the indictment alleges that the President

“asked the Arizona House Speaker to call the legislature 

into session to hold a hearing” about election fraud claims.

App. 193. The President has no authority over state legislatures or their leadership, so it is hard to see how prose- 

—————— 2 This analysis is unnecessary for allegations involving the President’s

private conduct because the Constitution offers no protection from prosecution of acts taken in a private capacity. Ante, at 15. Sorting private 

from official conduct sometimes will be difficult—but not always. Take 

the President’s alleged attempt to organize alternative slates of electors.

See, e.g., App. 208. In my view, that conduct is private and therefore not 

entitled to protection. See post, at 27–28 (SOTOMAYOR, J., dissenting). 

The Constitution vests power to appoint Presidential electors in the 

States. Art. II, §1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578, 

588–589 (2020). And while Congress has a limited role in that process, 

see Art. II, §1, cls. 3–4, the President has none. In short, a President has 

no legal authority—and thus no official capacity—to influence how the 

States appoint their electors. I see no plausible argument for barring 

prosecution of that alleged conduct. 
 

4 TRUMP v. UNITED STATES 

BARRETT, J., concurring in part 

cuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on 

executive power.

This two-step analysis—considering first whether the 

statute applies and then whether its application to the particular facts is constitutional—is similar to the approach

that the Special Counsel presses in this Court. Brief for 

United States 24–30. It is also our usual approach to considering the validity of statutes in situations raising a constitutional question. See, e.g., Seila Law LLC v. Consumer 

Financial Protection Bureau, 591 U. S. 197, 213, 229 

(2020).3 An important difference in this context is that the

President is entitled to an interlocutory appeal of the trial

court’s ruling. See ante, at 36. A criminal defendant in federal court normally must wait until after trial to seek review of the trial court’s refusal to dismiss charges. See 

United States v. MacDonald, 435 U. S. 850, 853–854 (1978); 

see also 18 U. S. C. §3731. But where trial itself threatens 

certain constitutional interests, we have treated the trial 

court’s resolution of the issue as a “final decision” for purposes of appellate jurisdiction. MacDonald, 435 U. S., at 

854–856; see 28 U. S. C. §1291; see also §1257. 

—————— 3The Court has sometimes applied an avoidance canon when interpreting a statute that would interfere with the President’s prerogatives. 

See, e.g., Franklin v. Massachusetts, 505 U. S. 788, 800–801 (1992); Public Citizen v. Dept. of Justice, 491 U. S. 440, 465–467 (1989); see also Sale 

v. Haitian Centers Council, Inc., 509 U. S. 155, 188 (1993). The Office of 

Legal Counsel has advocated for a clear-statement rule if applying a statute would “raise serious constitutional questions relating to the President’s constitutional authority.” See Application of 28 U. S. C. §458 to

Presidential Appointments of Federal Judges, 19 Op. OLC 350, 350–357

(1995). In my view, neither canon applies in this circumstance. Courts 

should instead determine the statute’s ordinary meaning and, if it covers 

the alleged official acts, assess whether prosecution would intrude on the

President’s constitutional authority. See Public Citizen, 491 U. S., at 

481–482 (Kennedy, J., concurring in judgment) (declining to apply the

avoidance canon and concluding that the Federal Advisory Committee 

Act is unconstitutional as applied). 
 

 

 

Cite as: 603 U. S. ____ (2024) 5 

BARRETT, J., concurring in part 

The present circumstances fall squarely within our precedent authorizing interlocutory review. When a President 

moves to dismiss an indictment on Article II grounds, he

“makes no challenge whatsoever to the merits of the charge 

against him.” Abney v. United States, 431 U. S. 651, 659 

(1977) (allowing interlocutory appeal of rejection of double

jeopardy defense). He instead contests whether the Constitution allows Congress to criminalize the alleged conduct, a 

question that is “collateral to, and separable from” his guilt 

or innocence. Ibid. Moreover, the President’s Executive 

Branch authority “would be significantly undermined if appellate review” of the constitutional challenge “were postponed until after conviction and sentence.” Id., at 660; see 

also Helstoski v. Meanor, 442 U. S. 500, 507 (1979) (allowing interlocutory appeal of refusal to dismiss an indictment

on Speech or Debate Clause grounds). The prospect of a 

trial court erroneously allowing the prosecution to proceed 

poses a unique danger to the “independence of the Executive Branch.” Trump v. Vance, 591 U. S. 786, 800 (2020).

As the Court explains, the possibility that the President 

will be made to defend his official conduct before a jury after 

he leaves office could distort his decisions while in office. 

Ante, at 13–14, 36. These Article II concerns do not insulate 

the President from prosecution. But they do justify interlocutory review of the trial court’s final decision on the President’s as-applied constitutional challenge. See Helstoski, 

442 U. S., at 507–508; Abney, 431 U. S., at 659–661; see also 

Reply Brief for United States in No. 23–624, p. 5 (agreeing 

that the President “has a right to an interlocutory appeal

from the district court’s rejection of his immunity defense”). 

I understand most of the Court’s opinion to be consistent

with these views. I do not join Part III–C, however, which 

holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a 

President, beyond the limits afforded by executive privilege.

See ante, at 30–32. I disagree with that holding; on this 
 

6 TRUMP v. UNITED STATES 

BARRETT, J., concurring in part 

score, I agree with the dissent. See post, at 25–27 

(SOTOMAYOR, J., dissenting). The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a 

bribery prosecution—a charge not at issue here but one that 

provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for 

or because of any official act.” 18 U. S. C. §201(c). The Constitution, of course, does not authorize a President to seek 

or accept bribes, so the Government may prosecute him if 

he does so. See Art. II, §4 (listing “Bribery” as an impeachable offense); see also Memorandum from L. Silberman, 

Deputy Atty. Gen., to R. Burress, Office of the President, 

Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974) (suggesting that the federal bribery

statute applies to the President). Yet excluding from trial

any mention of the official act connected to the bribe would

hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about 

both the quid and the quo, even if the quo, standing alone,

could not be a basis for the President’s criminal liability. 

I appreciate the Court’s concern that allowing into evidence official acts for which the President cannot be held 

criminally liable may prejudice the jury. Ante, at 31. But 

the rules of evidence are equipped to handle that concern 

on a case-by-case basis. Most importantly, a trial court can

exclude evidence of the President’s protected conduct “if its 

probative value is substantially outweighed by a danger of 

. . . unfair prejudice” or “confusing the issues.” Fed. Rule 

Evid. 403; see also Rule 105 (requiring the court to “restrict

the evidence to its proper scope and instruct the jury accordingly”). The balance is more likely to favor admitting

evidence of an official act in a bribery prosecution, for instance, than one in which the protected conduct has little 
Cite as: 603 U. S. ____ (2024) 7 

BARRETT, J., concurring in part 

connection to the charged offense. And if the evidence 

comes in, the trial court can instruct the jury to consider it 

only for lawful purposes. See Richardson v. Marsh, 481 

U. S. 200, 206–207 (1987). I see no need to depart from that

familiar and time-tested procedure here. 

* * * 

The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the

exercise of executive power is subject to a constitutional 

challenge. See, e.g., Collins v. Yellen, 594 U. S. 220, 235– 

236 (2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194 

(2012); Free Enterprise Fund v. Public Company Accounting 

Oversight Bd., 561 U. S. 477, 487–488 (2010). A criminal 

statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If 

that challenge fails, however, he must stand trial. 
 

_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 23–939 

DONALD J. TRUMP, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[July 1, 2024]

 JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 

JUSTICE JACKSON join, dissenting. 

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes 

a mockery of the principle, foundational to our Constitution

and system of Government, that no man is above the law.

Relying on little more than its own misguided wisdom about 

the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump 

all the immunity he asked for and more. Because our Constitution does not shield a former President from answering

for criminal and treasonous acts, I dissent. 

I 

The indictment paints a stark portrait of a President desperate to stay in power.

In the weeks leading up to January 6, 2021, thenPresident Trump allegedly “spread lies that there had been

outcome-determinative fraud in the election and that he 

had actually won,” App. 181, Indictment ¶2, despite being 

“notified repeatedly” by his closest advisers “that his claims

were untrue,” id., at 188, ¶11.

When dozens of courts swiftly rejected these claims, 

Trump allegedly “pushed officials in certain states to ignore 

the popular vote; disenfranchise millions of voters; dismiss 
 

 

 

2 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors” in his favor. Id., 

at 185–186, ¶10(a). It is alleged that he went so far as to 

threaten one state election official with criminal prosecution if the official did not “‘find’ 11,780 votes” Trump needed 

to change the election result in that state. Id., at 202, 

¶31(f ). When state officials repeatedly declined to act outside their legal authority and alter their state election processes, Trump and his co-conspirators purportedly developed a plan to disrupt and displace the legitimate election

certification process by organizing fraudulent slates of electors. See id., at 208–209, ¶¶53–54.

As the date of the certification proceeding neared, Trump

allegedly also sought to “use the power and authority of the 

Justice Department” to bolster his knowingly false claims 

of election fraud by initiating “sham election crime investigations” and sending official letters “falsely claim[ing] that 

the Justice Department had identified significant concerns

that may have impacted the election outcome” while

“falsely present[ing] the fraudulent electors as a valid alternative to the legitimate electors.” Id., at 186–187, ¶10(c).

When the Department refused to do as he asked, Trump

turned to the Vice President. Initially, he sought to persuade the Vice President “to use his ceremonial role at the 

January 6 certification proceeding to fraudulently alter the

election results.” Id., at 187, ¶10(d). When persuasion

failed, he purportedly “attempted to use a crowd of supporters that he had gathered in Washington, D. C., to pressure 

the Vice President to fraudulently alter the election results.” Id., at 221, ¶86. 

Speaking to that crowd on January 6, Trump “falsely 

claimed that, based on fraud, the Vice President could alter 

the outcome of the election results.” Id., at 229, ¶104(a).

When this crowd then “violently attacked the Capitol and

halted the proceeding,” id., at 188, ¶10(e), Trump allegedly 
Cite as: 603 U. S. ____ (2024) 3 

SOTOMAYOR, J., dissenting 

delayed in taking any step to rein in the chaos he had unleashed. Instead, in a last desperate ploy to hold onto

power, he allegedly “attempted to exploit the violence and 

chaos at the Capitol” by pressuring lawmakers to delay the 

certification of the election and ultimately declare him the 

winner. Id., at 233, ¶119. That is the backdrop against 

which this case comes to the Court. 

II 

The Court now confronts a question it has never had to

answer in the Nation’s history: Whether a former President 

enjoys immunity from federal criminal prosecution. The 

majority thinks he should, and so it invents an atextual,

ahistorical, and unjustifiable immunity that puts the President above the law. 

The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, 

the majority creates absolute immunity for the President’s 

exercise of “core constitutional powers.” Ante, at 6. This 

holding is unnecessary on the facts of the indictment, and 

the majority’s attempt to apply it to the facts expands the 

concept of core powers beyond any recognizable bounds. In 

any event, it is quickly eclipsed by the second move, which 

is to create expansive immunity for all “official act[s].” 

Ante, at 14. Whether described as presumptive or absolute,

under the majority’s rule, a President’s use of any official 

power for any purpose, even the most corrupt, is immune 

from prosecution. That is just as bad as it sounds, and it is 

baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no

role in any criminal prosecution against him. See ante, at 

30–32. That holding, which will prevent the Government 

from using a President’s official acts to prove knowledge or 

intent in prosecuting private offenses, is nonsensical.

Argument by argument, the majority invents immunity 
 

 

 

4 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

through brute force. Under scrutiny, its arguments crumble. To start, the majority’s broad “official acts” immunity 

is inconsistent with text, history, and established understandings of the President’s role. See Part III, infra. Moreover, it is deeply wrong, even on its own functionalist terms.

See Part IV, infra. Next, the majority’s “core” immunity is 

both unnecessary and misguided. See Part V, infra. Furthermore, the majority’s illogical evidentiary holding is unprecedented. See Part VI, infra. Finally, this majority’s

project will have disastrous consequences for the Presidency and for our democracy. See Part VII, infra. 

III 

The main takeaway of today’s decision is that all of a

President’s official acts, defined without regard to motive or 

intent, are entitled to immunity that is “at least . . . presumptive,” and quite possibly “absolute.” Ante, at 14. 

Whenever the President wields the enormous power of his 

office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity 

has “no firm grounding in constitutional text, history, or 

precedent.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 280 (2022). Indeed, those “standard 

grounds for constitutional decisionmaking,” id., at 279, all 

point in the opposite direction. No matter how you look at

it, the majority’s official-acts immunity is utterly indefensible. 

A 

The majority calls for a “careful assessment of the scope

of Presidential power under the Constitution.” Ante, at 5. 

For the majority, that “careful assessment” does not involve 

the Constitution’s text. I would start there. 

The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents. Of 

course, “the silence of the Constitution on this score is not 
 

Cite as: 603 U. S. ____ (2024) 5 

SOTOMAYOR, J., dissenting 

dispositive.” United States v. Nixon, 418 U. S. 683, 706, 

n. 16 (1974). Insofar as the majority rails against the notion that a “‘specific textual basis’” is required, ante, at 37 

(quoting Nixon v. Fitzgerald, 457 U. S. 731, 750, n. 31 

(1982)), it is attacking an argument that has not been made 

here. The omission in the text of the Constitution is worth 

noting, however, for at least three reasons. 

First, the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See 

Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in 

all Cases, except Treason, Felony and Breach of the Peace,

be privileged from Arrest during their Attendance at the

Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other

Place”). They did not extend the same or similar immunity

to Presidents. 

Second, “some state constitutions at the time of the Framing specifically provided ‘express criminal immunities’ to 

sitting governors.” Brief for Scholars of Constitutional Law 

as Amici Curiae 4 (quoting S. Prakash, Prosecuting and 

Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)).

The Framers chose not to include similar language in the 

Constitution to immunize the President. If the Framers 

“had wanted to create some constitutional privilege to

shield the President . . . from criminal indictment,” they 

could have done so. Memorandum from R. Rotunda to K. 

Starr re: Indictability of the President 18 (May 13, 1998). 

They did not.

Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability 

for former Presidents. The majority correctly rejects

Trump’s argument that a former President cannot be prosecuted unless he has been impeached by the House and convicted by the Senate for the same conduct. See ante, at 32– 
 

6 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

34; Part IV–C, infra. The majority ignores, however, that

the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal

process as a backstop by establishing that an official impeached and convicted by the Senate “shall nevertheless be 

liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, §3, cl. 7 (emphasis 

added). That Clause clearly contemplates that a former

President may be subject to criminal prosecution for the

same conduct that resulted (or could have resulted) in an

impeachment judgment—including conduct such as “Bribery,” Art. II, §4, which implicates official acts almost by definition.1 

B 

Aware of its lack of textual support, the majority points

out that this Court has “recognized Presidential immunities 

and privileges ‘rooted in the constitutional tradition of the

separation of powers and supported by our history.’” Ante, 

at 10 (quoting Fitzgerald, 457 U. S., at 749). That is true, 

as far as it goes. Nothing in our history, however, supports 

the majority’s entirely novel immunity from criminal prosecution for official acts. 

The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. 

For instance, Alexander Hamilton wrote that former Presidents would be “liable to prosecution and punishment in the 

ordinary course of law.” The Federalist No. 69, p. 452 (J.

Harv. Lib. ed. 2009). For Hamilton, that was an important 

distinction between “the king of Great Britain,” who was 

“sacred and inviolable,” and the “President of the United 

States,” who “would be amenable to personal punishment 

—————— 1Article II, §4, provides: “The President, Vice President and all Civil

Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and 

Misdemeanors.” 
 

Cite as: 603 U. S. ____ (2024) 7 

SOTOMAYOR, J., dissenting 

and disgrace.” Id., at 458. In contrast to the king, the President should be subject to “personal responsibility” for his 

actions, “stand[ing] upon no better ground than a governor 

of New York, and upon worse ground than the governors of

Maryland and Delaware,” whose State Constitutions gave

them some immunity. Id., at 452. 

At the Constitutional Convention, James Madison, who 

was aware that some state constitutions provided governors immunity, proposed that the Convention “conside[r]

what privileges ought to be allowed to the Executive.” 2 

Records of the Federal Convention of 1787, p. 503 (M. Farrand ed. 1911). There is no record of any such discussion. 

Ibid. Delegate Charles Pinckney later explained that “[t]he

Convention which formed the Constitution well knew” that 

“no subject had been more abused than privilege,” and so it

“determined to . . . limi[t] privilege to what was necessary, 

and no more.” 3 id., at 385. “No privilege . . . was intended 

for [the] Executive.” Ibid.2 

Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President. James Wilson 

recognized that federal officers who use their official powers 

to commit crimes “may be tried by their country; and if their

criminality is established, the law will punish. A grand jury

may present, a petty jury may convict, and the judges will 

pronounce the punishment.” 2 Debates on the Constitution 

177 (J. Elliot ed. 1836). A few decades later, Justice Story 

evinced the same understanding. He explained that, when 

—————— 2To note, as the majority does, see ante, at 39, that this Court has recognized civil immunities arguably inconsistent with this view is not to

say that Pinckney was wrong about what the Framers had “intended.” 

Indeed, Pinckney’s contemporaries shared the same view during the ratification debates. See, e.g., 4 Debates on the Constitution 109 (J. Elliot

ed. 1836) (J. Iredell) (“If the President does a single act by which the

people are prejudiced, he is punishable himself. . . . If he commits any 

crime, he is punishable by the laws of his country”). 
 

 

 

 

 

8 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

a federal official commits a crime in office, “it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction

of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders.” 2 Commentaries on the Constitution of the United States §780,

pp. 250–251 (1833). Without a criminal trial, he explained, 

“the grossest official offenders might escape without any

substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” Id., at 251. 

This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been 

that no man is free to flout the criminal law. The majority

fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the 

ledger, the most the majority can do is claim that the historical evidence is a wash. See ante, at 38–39. It claims 

that the Court previously has described the “relevant historical evidence on the question of Presidential immunity” 

as “‘fragmentary’” and not worthy of consideration. Ante, 

at 38 (quoting Fitzgerald, 457 U. S., at 752, n. 31). Yet the 

Court has described only the evidence regarding “the President’s immunity from damages liability” as “fragmentary.” 

Fitzgerald, 457 U. S., at 751–752, n. 31 (emphasis added).

Moreover, far from dismissing that evidence as irrelevant,

the Fitzgerald Court was careful to note that “[t]he best historical evidence clearly support[ed]” the immunity from

damages liability that it recognized, and it relied in part on 

that historical evidence to overcome the lack of any textual

basis for its immunity. Id., at 152, n. 31. The majority ignores this reliance. It seems history matters to this Court

only when it is convenient. See, e.g., New York State Rifle 

& Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022); Dobbs, 597 

U. S. 215. 
Cite as: 603 U. S. ____ (2024) 9 

SOTOMAYOR, J., dissenting 

C 

Our country’s history also points to an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the 

criminal law for their official acts. Cf. Chiafalo v. Washington, 591 U. S. 578, 592–593 (2020) (“‘Long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions’” (quoting The 

Pocket Veto Case, 279 U. S. 655, 689 (1929))). Consider Watergate, for example. After the Watergate tapes revealed 

President Nixon’s misuse of official power to obstruct the 

Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both 

Ford’s pardon and Nixon’s acceptance of the pardon necessarily “rested on the understanding that the former President faced potential criminal liability.” Brief for United 

States 15; see also Public Papers of the Presidents, Gerald 

R. Ford, Vol. 1, Sept. 8, 1974, p. 103 (1975) (granting former 

President Nixon a “full, free, and absolute pardon . . . for all 

offenses against the United States which he . . . has committed or may have committed or taken part in during” his

Presidency); R. Nixon, Statement by Former President

Richard Nixon to P. Buchen, Counsel to President Ford, 

p. 1 (Sept. 8, 1974) (accepting “full and absolute pardon for 

any charges which might be brought against me for actions

taken during the time I was President of the United

States”).

Subsequent special counsel and independent counsel investigations have also operated on the assumption that the

Government can criminally prosecute former Presidents for 

their official acts, where they violate the criminal law. See, 

e.g., 1 L. Walsh, Final Report of the Independent Counsel 

for Iran/Contra Matters: Investigations and Prosecutions 

445 (1993) (“[B]ecause a President, and certainly a past

President, is subject to prosecution . . . the conduct of Pres-
 

10 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

ident Reagan in the Iran/contra matter was reviewed by Independent Counsel against the applicable statutes. It was 

concluded that [his] conduct fell well short of criminality

which could be successfully prosecuted”).

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach

Trump for his conduct related to January 6 would not leave

him “in any way above the law.” 2 Proceedings of the U. S.

Senate in the Impeachment Trial of Donald John Trump, S. 

Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of

law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s

impeachment counsel stating that “no former officeholder

is immune” from the judicial process “for investigation,

prosecution, and punishment”); id., at 322–323 (Trump’s

impeachment counsel stating: “If my colleagues on this side 

of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you 

go and arrest him”). Now that Trump is facing criminal

charges for those acts, though, the tune has changed. Being

treated “like any other citizen” no longer seems so appealing.

In sum, the majority today endorses an expansive vision

of Presidential immunity that was never recognized by the 

Founders, any sitting President, the Executive Branch, or

even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority

in this case, and so it ignores them. 

IV 

A 

Setting aside this evidence, the majority announces that

former Presidents are “absolute[ly],” or “at least . . . presumptive[ly],” immune from criminal prosecution for all of 

their official acts. Ante, at 14 (emphasis omitted). The majority purports to keep us in suspense as to whether this 
 

Cite as: 603 U. S. ____ (2024) 11 

SOTOMAYOR, J., dissenting 

immunity is absolute or presumptive, but it quickly gives 

up the game. It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official

act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive

Branch.’” Ibid. (emphasis added). No dangers, none at all.

It is hard to imagine a criminal prosecution for a President’s 

official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that 

be the standard. Surely some intrusions on the Executive

may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” 

Nixon v. Administrator of General Services, 433 U. S. 425, 

443 (1977). Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice

in criminal prosecutions.” United States v. Nixon, 418 U. S. 

683, 707 (1974). According to the majority, however, any 

incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision

as to “whether [official-acts] immunity must be absolute” or 

whether, instead, “presumptive immunity is sufficient,” 

ante, at 6, hardly matters. 

Maybe some future opinion of this Court will decide that 

presumptive immunity is “sufficient,” ibid., and replace the 

majority’s ironclad presumption with one that makes the

difference between presumptive and absolute immunity 

meaningful. Today’s Court, however, has replaced a presumption of equality before the law with a presumption

that the President is above the law for all of his official acts. 

Quick on the heels of announcing this astonishingly 

broad official-acts immunity, the majority assures us that a 

former President can still be prosecuted for “unofficial acts.” 

Ante, at 15. Of course he can. No one has questioned the

ability to prosecute a former President for unofficial (other-
 

12 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

wise known as private) acts. Even Trump did not claim immunity for such acts and, as the majority acknowledges,

such an immunity would be impossible to square with Clinton v. Jones, 520 U. S. 681 (1997). See ante, at 15. This 

unremarkable proposition is no real limit on today’s decision. It does not hide the majority’s embrace of the most 

far-reaching view of Presidential immunity on offer.

In fact, the majority’s dividing line between “official” and

“unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 

17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 

2023)). It then goes a step further: “In dividing official from 

unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18. It is one thing to say that motive is irrelevant to questions regarding the scope of civil 

liability, but it is quite another to make it irrelevant to 

questions regarding criminal liability. Under that rule, any 

use of official power for any purpose, even the most corrupt 

purpose indicated by objective evidence of the most corrupt

motives and intent, remains official and immune. Under 

the majority’s test, if it can be called a test, the category of 

Presidential action that can be deemed “unofficial” is destined to be vanishingly small.

Ultimately, the majority pays lip service to the idea that

“[t]he President, charged with enforcing federal criminal 

laws, is not above them,” ante, at 13–14, but it then proceeds to place former Presidents beyond the reach of the

federal criminal laws for any abuse of official power. 

B 

So how does the majority get to its rule? With text, history, and established understanding all weighing against it,

the majority claims just one arrow in its quiver: the balancing test in Nixon v. Fitzgerald, 457 U. S. 731 (1983). Yet 
Cite as: 603 U. S. ____ (2024) 13 

SOTOMAYOR, J., dissenting 

even that test cuts against it. The majority concludes that

official-acts immunity “is required to safeguard the independence and effective functioning of the Executive 

Branch,” ante, at 14, by rejecting that Branch’s own protestations that such immunity is not at all required and would

in fact be harmful, see Brief for United States 18–24, 29– 

30. In doing so, it decontextualizes Fitzgerald’s language,

ignores important qualifications, and reaches a result that

the Fitzgerald Court never would have countenanced. 

In Fitzgerald, plaintiff A. Ernest Fitzgerald sued thenformer President Nixon for money damages. He claimed 

that, while in office, Nixon had been involved in unlawfully 

firing him from his government job. See 457 U. S., at 733– 

741. The question for the Court was whether a former President had immunity from such a civil suit. The Court explained that it was “settled law that the separation-ofpowers doctrine does not bar every exercise of jurisdiction 

over the President of the United States.” Id., at 753–754. 

To determine whether a particular type of suit against a 

President (or former President) could be heard, a court 

“must balance the constitutional weight of the interest to be

served against the dangers of intrusion on the authority

and functions of the Executive Branch.” Id., at 754. The 

Court explained that, “[w]hen judicial action is needed to 

serve broad public interests—as when the Court acts, not

in derogation of the separation of powers, but to maintain

their proper balance, or to vindicate the public interest in 

an ongoing criminal prosecution—the exercise of jurisdiction has been held warranted.” Ibid. (citations omitted).

On the facts before it, the Court concluded that a “merely

private suit for damages based on a President’s official acts” 

did not serve those interests. Ibid. The Court reasoned 

that the “visibility of [the President’s] office and the effect 

of his actions on countless people” made him an easy target 

for civil suits that “frequently could distract [him] from his 
 

 

14 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

public duties.” Id., at 753. The public interest in such private civil suits, the Court concluded, was comparatively

weak. See id., at 754, n. 37 (“[T]here is a lesser public interest in actions for civil damages than, for example, in

criminal prosecutions”). Therefore, the Court held that a 

former President was immune from such suits. Ibid. 

In the context of a federal criminal prosecution of a former President, however, the danger to the functioning of 

the Executive Branch is much reduced. Further, as every 

member of the Fitzgerald Court acknowledged, see Part IV– 

B–2, infra, the public interest in a criminal prosecution is

far weightier. Applying the Fitzgerald balancing here 

should yield the opposite result. Instead, the majority

elides any difference between civil and criminal immunity,

granting Trump the same immunity from criminal prosecution that Nixon enjoyed from an unlawful termination suit.

That is plainly wrong. 

1 

The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion 

of the other side of the balancing test. Its analysis rests on 

a questionable conception of the President as incapable of 

navigating the difficult decisions his job requires while 

staying within the bounds of the law. It also ignores the 

fact that he receives robust legal advice on the lawfulness

of his actions. 

The majority says that the danger “of intrusion on the

authority and functions of the Executive Branch” posed by

criminally prosecuting a former President for official conduct “is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the

‘bold and unhesitating action’ required of an independent 

Executive.” Ante, at 13 (quoting Fitzgerald, 457 U. S., at 

745). It is of course important that the President be able to 
 

Cite as: 603 U. S. ____ (2024) 15 

SOTOMAYOR, J., dissenting 

“‘“deal fearlessly and impartially with” the duties of his office.’” Ante, at 10 (quoting Fitzgerald, 457 U. S., at 752). If 

every action the President takes exposes him personally to 

vexatious private litigation, the possibility of hamstringing 

Presidential decisionmaking is very real. Yet there are 

many facets of criminal liability, which the majority discounts, that make it less likely to chill Presidential action 

than the threat of civil litigation.

First, in terms of probability, the threat of criminal liability is much smaller. In Fitzgerald, the threat of vexatious civil litigation loomed large. The Court observed that, 

given the “visibility of his office and the effect of his actions 

on countless people, the President would be an easily identifiable target for suits for civil damages.” Id., at 753. Although “‘the effect of [the President’s] actions on countless

people’ could result in untold numbers of private plaintiffs 

suing for damages based on any number of Presidential 

acts” in the civil context, the risk in the criminal context is 

“only that a former President may face one federal prosecution, in one jurisdiction, for each criminal offense allegedly 

committed while in office.” 2023 WL 8359833, *9 (DC, Dec. 

1, 2023) (quoting Fitzgerald, 457 U. S., at 753). The majority’s bare assertion that the burden of exposure to federal 

criminal prosecution is more limiting to a President than 

the burden of exposure to civil suits does not make it true, 

and it is not persuasive.

Second, federal criminal prosecutions require “robust 

procedural safeguards” not found in civil suits. 2023 WL 

8359833, *10. The criminal justice system has layers of protections that “filter out insubstantial legal claims,” whereas

civil litigation lacks “analogous checks.” Cheney v. United 

States Dist. Court for D. C., 542 U. S. 367, 386 (2004). To 

start, Justice Department policy requires scrupulous and 

impartial prosecution, founded on both the facts and the 

law. See generally Dept. of Justice, Justice Manual §9–

27.000 (Principles of Federal Prosecution) (June 2023). The 
 

 

16 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

grand jury provides an additional check on felony prosecutions, acting as a “buffer or referee between the Government and the people,” to ensure that the charges are wellfounded. United States v. Williams, 504 U. S. 36, 47 (1992); 

see also Harlow v. Fitzgerald, 457 U. S. 800, 826, n. 6 (1982) 

(Burger, C. J., dissenting) (“[A] criminal prosecution cannot 

be commenced absent careful consideration by a grand jury 

at the request of a prosecutor; the same check is not present 

with respect to the commencement of civil suits in which

advocates are subject to no realistic accountability”). 

If the prosecution makes it past the grand jury, then the

former President still has all the protections our system 

provides to criminal defendants. If the former President 

has an argument that a particular statute is unconstitutional as applied to him, then he can move to dismiss the 

charges on that ground. Indeed, a former President is likely 

to have legal arguments that would be unavailable to the 

average criminal defendant. For example, he may be able

to rely on a public-authority exception from particular criminal laws,3 or an advice-of-the-Attorney-General defense,

see Tr. of Oral Arg. 107–108.4 

—————— 3See Nardone v. United States, 302 U. S. 379, 384 (1937) (explaining 

that public officers may be “impliedly excluded from [statutory] language 

embracing all persons” if reading the statute to include such officers 

“would work obvious absurdity as, for example, the application of a speed

law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm”); see also Memorandum from D. Barron, Acting

Assistant Atty. Gen., Office of Legal Counsel, to E. Holder, Atty. Gen., 

Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July

16, 2010) (interpreting criminal statute prohibiting unlawful killings “to

incorporate the public authority justification, which can render lethal action carried out by a government official lawful in some circumstances”). 4Trump did not raise those defenses in this case, and the immunity

that the majority has created likely will obviate the need to raise them

in future cases. Yet those defenses would have protected former Presidents from unwarranted criminal prosecutions much more precisely 

than the blanket immunity the majority creates today. 
 

Cite as: 603 U. S. ____ (2024) 17 

SOTOMAYOR, J., dissenting 

If the case nonetheless makes it to trial, the Government 

will bear the burden of proving every element of the alleged 

crime beyond a reasonable doubt to a unanimous jury of the

former President’s fellow citizens. See United States v. 

Gaudin, 515 U. S. 506, 510 (1995). If the Government manages to overcome even that significant hurdle, then the former President can appeal his conviction, and the appellate

review of his claims will be “‘particularly meticulous.’” 

Trump v. Vance, 591 U. S. 786, 809 (2020) (quoting Nixon, 

418 U. S., at 702). He can ultimately seek this Court’s review, and if past practice (including in this case) is any indication, he will receive it. 

In light of these considerable protections, the majority’s 

fear that “‘bare allegations of malice,’” ante, at 18 (alteration omitted), would expose former Presidents to trial and

conviction is unfounded. Bare allegations of malice would 

not make it out of the starting gate. Although a private civil

action may be brought based on little more than “‘intense

feelings,’” ante, at 11 (quoting Fitzgerald, 457 U. S., at 752),

a federal criminal prosecution is made of firmer stuff. Certainly there has been, on occasion, great feelings of animosity between incoming and outgoing Presidents over the

course of our country’s history. Yet it took allegations as 

grave as those at the center of this case to have the first 

federal criminal prosecution of a former President. That 

restraint is telling.

Third, because of longstanding interpretations by the Executive Branch, every sitting President has so far believed 

himself under the threat of criminal liability after his term

in office and nevertheless boldly fulfilled the duties of his 

office. The majority insists that the threat of criminal sanctions is “more likely to distort Presidential decisionmaking 

than the potential payment of civil damages.” Ante, at 13. 

If that is right, then that distortion has been shaping Presidential decisionmaking since the earliest days of the Republic. Although it makes sense to avoid “diversion of the 
 

 

18 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

President’s attention during the decisionmaking process”

with “needless worry,” Clinton, 520 U. S., at 694, n. 19, one 

wonders why requiring some small amount of his attention 

(or his legal advisers’ attention) to go towards complying

with federal criminal law is such a great burden. If the 

President follows the law that he must “take Care” to execute, Art. II, §3, he has not been rendered “‘unduly cautious,’” ante, at 10 (quoting Fitzgerald, 457 U. S., at 752, 

n. 32). Some amount of caution is necessary, after all. It is 

a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity. I am deeply troubled by the idea, inherent 

in the majority’s opinion, that our Nation loses something

valuable when the President is forced to operate within the

confines of federal criminal law. 

So what exactly is the majority worried about deterring

when it expresses great concern for the “deterrent” effect

that “the threat of trial, judgment, and imprisonment” 

would pose? Ante, at 13. It cannot possibly be the deterrence of acts that are truly criminal. Nor does it make sense 

for the majority to wring its hands over the possibility that 

Presidents might stop and think carefully before taking action that borders on criminal. Instead, the majority’s main

concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution—a prosecution that would almost certainly be doomed 

to fail, if it even made it out of the starting gate. See ante, 

at 40. The Court should not have so little faith in this Nation’s Presidents. As this Court has said before in the context of criminal proceedings, “‘[t]he chance that now and 

then there may be found some timid soul who will take 

counsel of his fears and give way to their repressive power 

is too remote and shadowy to shape the course of justice.’” 

Nixon, 418 U. S., at 712, n. 20 (quoting Clark v. United 

States, 289 U. S. 1, 16 (1933)). The concern that countless 
Cite as: 603 U. S. ____ (2024) 19 

SOTOMAYOR, J., dissenting 

(and baseless) civil suits would hamper the Executive may 

have been justified in Fitzgerald, but a well-founded federal 

criminal prosecution poses no comparable danger to the

functioning of the Executive Branch. 

2 

At the same time, the public interest in a federal criminal

prosecution of a former President is vastly greater than the

public interest in a private individual’s civil suit. All nine 

Justices in Fitzgerald explicitly recognized that distinction. 

The five-Justice majority noted that there was a greater

public interest “in criminal prosecutions” than in “actions

for civil damages.” 457 U. S., at 754, n. 37. Chief Justice 

Burger’s concurrence accordingly emphasized that the majority’s immunity was “limited to civil damages claims,” rather than “criminal prosecution.” Id., at 759–760. The four 

dissenting Justices agreed that a “contention that the President is immune from criminal prosecution in the courts,” if

ever made, would not “be credible.” Id., at 780 (White, J., 

dissenting). At the very least, the Fitzgerald Court did not 

expect that its balancing test would lead to the same outcome in the criminal context. 

The public’s interest in prosecution is transparent: a federal prosecutor herself acts on behalf of the United States. 

Even the majority acknowledges that the “[f]ederal criminal laws seek to redress ‘a wrong to the public’ as a whole,

not just ‘a wrong to the individual,’” ante, at 13 (quoting 

Huntington v. Attrill, 146 U. S. 657, 668 (1892)), such that 

there is “a compelling ‘public interest in fair and effective 

law enforcement,’” ante, at 13 (quoting Vance, 591 U. S., at 

808). Indeed, “our historic commitment to the rule of law” 

is “nowhere more profoundly manifest than in our view that 

. . . ‘guilt shall not escape or innocence suffer.’” Nixon, 418 

U. S., at 708–709 (quoting Berger v. United States, 295 U. S. 

78, 88 (1935)).

The public interest in criminal prosecution is particularly 
 

20 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

strong with regard to officials who are granted some degree 

of civil immunity because of their duties. It is in those cases 

where the public can see that officials exercising power under public trust remain on equal footing with their fellow

citizens under the criminal law. See, e.g., O’Shea v. Littleton, 414 U. S. 488, 503 (1974) (“[W]e have never held that 

the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization 

of otherwise criminal deprivations of constitutional 

rights”); Dennis v. Sparks, 449 U. S. 24, 31 (1980) (“[J]udicial immunity was not designed to insulate the judiciary

from all aspects of public accountability. Judges are immune from §1983 damages actions, but they are subject to 

criminal prosecutions as are other citizens”); Imbler v. 

Pachtman, 424 U. S. 409, 428–429 (1976) (“We emphasize 

that the [civil] immunity of prosecutors . . . does not leave 

the public powerless to deter misconduct or to punish that

which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain

governmental officials also place them beyond the reach of 

the criminal law. Even judges, cloaked with absolute civil 

immunity for centuries, could be punished criminally”).

The public interest in the federal criminal prosecution of 

a former President alleged to have used the powers of his 

office to commit crimes may be greater still. “[T]he President . . . represent[s] all the voters in the Nation,” and his

powers are given by the people under our Constitution. Anderson v. Celebrezze, 460 U. S. 780, 795 (1983). When Presidents use the powers of their office for personal gain or as

part of a criminal scheme, every person in the country has 

an interest in that criminal prosecution. The majority overlooks that paramount interest entirely.

Finally, the question of federal criminal immunity for a 

former President “involves a countervailing Article II consideration absent in Fitzgerald”: recognizing such an im-
Cite as: 603 U. S. ____ (2024) 21 

SOTOMAYOR, J., dissenting 

munity “would frustrate the Executive Branch’s enforcement of the criminal law.” Brief for United States 19. The 

President is, of course, entrusted with “‘supervisory and 

policy responsibilities of utmost discretion and sensitivity.’” 

Ante at 10 (quoting Fitzgerald, 457 U. S., at 750). One of 

the most important is “enforcement of federal law,” as “it is

the President who is charged constitutionally to ‘take Care

that the Laws be faithfully executed.’” Id., at 750 (quoting 

Art. II, §3). The majority seems to think that allowing former Presidents to escape accountability for breaking the 

law while disabling the current Executive from prosecuting 

such violations somehow respects the independence of the

Executive. It does not. Rather, it diminishes that independence, exalting occupants of the office over the office itself. There is a twisted irony in saying, as the majority

does, that the person charged with “tak[ing] Care that the

Laws be faithfully executed” can break them with impunity.

In the case before us, the public interest and countervailing Article II interest are particularly stark. The public interest in this criminal prosecution implicates both “[t]he

Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution” as well as “the voters’ interest in democratically

selecting their President.” 91 F. 4th 1173, 1195 (CADC 

2024) (per curiam). It also, of course, implicates Congress’s

own interest in regulating conduct through the criminal 

law. Cf. Fitzgerald, 457 U. S., at 749, n. 27 (noting that the 

case did not involve “affirmative action by Congress”). Yet 

the majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and

negates the interests of the other branches in carrying out

their constitutionally assigned functions. It is, in fact, the 

majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.” Ante, at 40. 
 

 

22 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

C 

Finally, in an attempt to put some distance between its 

official-acts immunity and Trump’s requested immunity,

the majority insists that “Trump asserts a far broader immunity than the limited one [the majority has] recognized.” 

Ante, at 32. If anything, the opposite is true. The only part

of Trump’s immunity argument that the majority rejects is

the idea that “the Impeachment Judgment Clause requires

that impeachment and Senate conviction precede a President’s criminal prosecution.” Ibid. That argument is obviously wrong. See ante, at 32–34. Rejecting it, however,

does not make the majority’s immunity narrower than 

Trump’s. Inherent in Trump’s Impeachment Judgment 

Clause argument is the idea that a former President who

was impeached in the House and convicted in the Senate 

for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 

(“The Founders thus adopted a carefully balanced approach 

that permits the criminal prosecution of a former President 

for his official acts, but only if that President is first impeached by the House and convicted by the Senate”). By

extinguishing that path to overcoming immunity, however 

nonsensical it might be, the majority arrives at an officialacts immunity even more expansive than the one Trump 

argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and 

so offensive even to members of his own party that he was 

impeached in the House and convicted in the Senate still

would be entitled to “at least presumptive” criminal immunity for those acts. 

V 

Separate from its official-acts immunity, the majority recognizes absolute immunity for “conduct within [the President’s] exclusive sphere of constitutional authority.” Ante, 

at 9. Feel free to skip over those pages of the majority’s 
Cite as: 603 U. S. ____ (2024) 23 

SOTOMAYOR, J., dissenting 

opinion. With broad official-acts immunity covering the 

field, this ostensibly narrower immunity serves little purpose. In any event, this case simply does not turn on conduct within the President’s “exclusive sphere of constitutional authority,” and the majority’s attempt to apply a core

immunity of its own making expands the concept of “core

constitutional powers,” ante, at 6, beyond any recognizable 

bounds. 

The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue. 

If the President’s power is “conclusive and preclusive” on a 

given subject, then Congress should not be able to “ac[t] 

upon the subject.” Youngstown Sheet & Tube Co. v. Sawyer, 

343 U. S. 579, 638 (1952) (Jackson, J., concurring). In his 

Youngstown concurrence, Justice Robert Jackson posited 

that the President’s “power of removal in executive agencies” seemed to fall within this narrow category. Ibid., n. 4. 

Other decisions of this Court indicate that the pardon 

power also falls in this category, see United States v. Klein, 

13 Wall. 128, 147 (1872) (“To the executive alone is intrusted the power of pardon; and it is granted without

limit”), as does the power to recognize foreign countries, see 

Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015) (holding that the

President has “exclusive power . . . to control recognition determinations”).

In this case, however, the question whether a former

President enjoys a narrow immunity for the “exercise of his

core constitutional powers,” ante, at 6, has never been at 

issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the 

unassailable core of Executive power. He was not charged,

for example, with illegally wielding the Presidency’s pardon

power or veto power or appointment power or even removal 

power. Instead, Trump was charged with a conspiracy to

commit fraud to subvert the Presidential election. It is true 

that the detailed indictment in this case alleges that Trump 
 

 

24 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

threatened to remove an Acting Attorney General who 

would not carry out his scheme. See, e.g., App. 216–217,

Indictment ¶¶74, 77. Yet it is equally clear that the Government does not seek to “impose criminal liability on the

[P]resident for exercising or talking about exercising the 

appointment and removal power.” Tr. of Oral Arg. 127. If 

that were the majority’s concern, it could simply have said 

that the Government cannot charge a President’s threatened use of the removal power as an overt act in the conspiracy. It says much more. 

The core immunity that the majority creates will insulate 

a considerably larger sphere of conduct than the narrow 

core of “conclusive and preclusive” powers that the Court

previously has recognized. The first indication comes when 

the majority includes the President’s broad duty to “‘take 

Care that the Laws be faithfully executed’” among the core 

functions for which a former President supposedly enjoys 

absolute immunity. Ante, at 20 (quoting Art. II, §3). That 

expansive view of core power will effectively insulate all

sorts of noncore conduct from criminal prosecution. Were 

there any question, consider how the majority applies its

newly minted core immunity to the allegations in this case.

It concludes that “Trump is . . . absolutely immune from

prosecution for” any “conduct involving his discussions with

Justice Department officials.” Ante, at 21. That conception

of core immunity expands the “conclusive and preclusive”

category beyond recognition, foreclosing the possibility of 

prosecution for broad swaths of conduct. Under that view 

of core powers, even fabricating evidence and insisting the 

Department use it in a criminal case could be covered. The 

majority’s conception of “core” immunity sweeps far more

broadly than its logic, borrowed from Youngstown, should 

allow. 

The majority tries to assuage any concerns about its 

made-up core immunity by suggesting that the Government 
Cite as: 603 U. S. ____ (2024) 25 

SOTOMAYOR, J., dissenting 

agrees with it. See ante, at 34. That suggestion will surprise the Government. To say, as the Government did, that 

a “small core of exclusive official acts” such as “the pardon 

power, the power to recognize foreign nations, the power to 

veto legislation, [and] the power to make appointments”

cannot be regulated by Congress, see Tr. of Oral Arg. 85–

87, does not suggest that the Government agrees with immunizing any and all conduct conceivably related to the majority’s broad array of supposedly “core” powers. The Government in fact advised this Court to “leav[e] potentially 

more difficult questions” about the scope of any immunity 

“that might arise on different facts for decision if they are 

ever presented.” Brief for United States 45. That would 

have made sense. The indictment here does not pose any 

threat of impermissibly criminalizing acts within the President’s “conclusive and preclusive” authority. Perhaps for

this reason, even Trump discouraged consideration of “a 

narrower scope of immunity,” claiming that such an immunity “would be nearly impossible to fashion, and would 

certainly involve impractical line-drawing problems in 

every application.” Brief for Petitioner 43–44. 

When forced to wade into thorny separation-of-powers

disputes, this Court’s usual practice is to “confine the opinion only to the very questions necessary to decision of the 

case.” Dames & Moore v. Regan, 453 U. S. 654, 661 (1981). 

There is plenty of peril and little value in crafting a core

immunity doctrine that Trump did not seek and that rightly

has no application to this case. 

VI 

Not content simply to invent an expansive criminal immunity for former Presidents, the majority goes a dramatic 

and unprecedented step further. It says that acts for which

the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. 

They must play no role in proceedings regarding private 
 

 

 

26 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

criminal acts. See ante, at 30–32. 

Even though the majority’s immunity analysis purports

to leave unofficial acts open to prosecution, its draconian 

approach to official-acts evidence deprives these prosecutions of any teeth. If the former President cannot be held 

criminally liable for his official acts, those acts should still 

be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts. For instance, the majority struggles with classifying whether a President’s speech is in his 

capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech

that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that

political rival (unofficial act). Under the majority’s rule, the

murder indictment could include no allegation of the President’s public admission of premeditated intent to support 

the mens rea of murder. That is a strange result, to say the 

least.5 

The majority’s extraordinary rule has no basis in law.

Consider the First Amendment context. Although the First

Amendment prohibits criminalizing most speech, it “does

not prohibit the evidentiary use of speech,” including its use 

“to prove motive or intent.” Wisconsin v. Mitchell, 508 U. S. 

476, 489 (1993). Evidentiary rulings and limiting instructions can ensure that evidence concerning official acts is

“considered only for the proper purpose for which it was admitted.” Huddleston v. United States, 485 U. S. 681, 691– 

692 (1988). The majority has no coherent explanation as to 

—————— 5 The majority suggests, in a footnote, that a “prosecutor may point to 

the public record to show the fact that the President performed the official act,” so long as the prosecutor does not “invite the jury to inspect” 

the act in any way. Ante, at 32, n. 3. Whatever that suggestion is supposed to accomplish, it does not salvage the majority’s nonsensical evidentiary rule. 
 

Cite as: 603 U. S. ____ (2024) 27 

SOTOMAYOR, J., dissenting 

why these protections that are sufficient in every other context would be insufficient here. It simply asserts that it

would be “untenable” and would deprive immunity of its

“‘intended effect.’” Ante, at 31 (quoting Fitzgerald, 457 

U. S., at 756). The majority hazards an explanation that

the use of official-acts evidence will “raise a unique risk that 

the jurors’ deliberations will be prejudiced by their views of 

the President’s policies and performance while in office.” 

Ante, at 31. That “unique risk,” however, is not a product 

of introducing official-acts evidence. It is simply the risk

involved in any suit against a former President, including

the private-acts prosecutions the majority says it would allow. 

VII 

Today’s decision to grant former Presidents immunity for 

their official acts is deeply wrong. As troubling as this criminal immunity doctrine is in theory, the majority’s application of the doctrine to the indictment in this case is perhaps 

even more troubling. In the hands of the majority, this new 

official-acts immunity operates as a one-way ratchet.

First, the majority declares all of the conduct involving

the Justice Department and the Vice President to be official 

conduct, see ante, at 19–24, yet it refuses to designate any 

course of conduct alleged in the indictment as private, despite concessions from Trump’s counsel.6 Trump’s counsel

conceded, for example, that the allegation that Trump 

—————— 6The majority protests that it is “adher[ing] to time-tested practices” 

by “deciding what is required to dispose of this case and remanding” to 

lower courts to sort out the details. Ante, at 41. Yet it implicitly acknowledges that it reaches far beyond what any lower court considered or any

party briefed by designating certain conduct official in the first instance. 

See ibid. (noting “the lack of factual analysis in the lower courts, and the

lack of briefing on how to categorize the conduct alleged”). In reaching

out to shield some conduct as official while refusing to recognize any conduct as unofficial, the majority engages in judicial activism, not judicial 

restraint. 
 

 

28 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

“turned to a private attorney who was willing to spread 

knowingly false claims of election fraud to spearhead his 

challenges to the election results” “sounds private.” Tr. of 

Oral Arg. 29. He likewise conceded that the allegation that 

Trump “conspired with another private attorney who 

caused the filing in court of a verification signed by [Trump]

that contained false allegations to support a challenge”

“sounds private.” Ibid.; see also id., at 36–37 (Trump’s

counsel explaining that it is not “disputed” that such conduct is “unofficial”). Again, when asked about allegations

that “[t]hree private actors . . . helped implement a plan to 

submit fraudulent slates of presidential electors to obstruct

the certification proceeding, and [Trump] and a co-conspirator attorney directed that effort,” Trump’s counsel conceded 

the alleged conduct was “private.” Id., at 29–30. Only the 

majority thinks that organizing fraudulent slates of electors might qualify as an official act of the President, see 

ante, at 24–28, or at least an act so “interrelated” with other 

allegedly official acts that it might warrant protection, ante, 

at 28. If the majority’s sweeping conception of “official acts” 

has any real limits, the majority is unwilling to reveal them 

in today’s decision. 

Second, the majority designates certain conduct immune 

while refusing to recognize anything as prosecutable. It 

shields large swaths of conduct involving the Justice Department with immunity, see ante, at 19–21; see also Part 

V, supra, but it does not give an inch in the other direction. 

The majority admits that the Vice President’s responsibility

“‘presiding over the Senate’” is “‘not an “executive branch”

function,’” and it further admits that the President “plays

no direct constitutional or statutory role” in the counting of 

electoral votes. Ante, at 23–24. Yet the majority refuses to

conclude that Trump lacks immunity for his alleged attempts to “enlist the Vice President to use his ceremonial

role at the January 6 certification proceeding to fraudulently alter the election results.” App. 187, Indictment 
 

Cite as: 603 U. S. ____ (2024) 29 

SOTOMAYOR, J., dissenting 

¶10(d). Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice 

President “to advance [his] agenda in Congress.” Ante, at 

24. Such a prosecution, according to the majority, “may

well hinder the President’s ability to perform his constitutional functions.” Ibid. Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one. 

Remarkably, the majority goes further and declines to deny

immunity even for the allegations that Trump organized 

fraudulent elector slates, pressured States to subvert the 

legitimate election results, and exploited violence at the

Capitol to influence the certification proceedings. It is not 

conceivable that a prosecution for these alleged efforts to

overturn a Presidential election, whether labeled official or 

unofficial under the majority’s test, would pose any “‘dangers of intrusion on the authority and functions of the Executive Branch,’” ante, at 14, and the majority could have

said as much. Instead, it perseverates on a threshold question that should be immaterial. 

Looking beyond the fate of this particular prosecution, 

the long-term consequences of today’s decision are stark. 

The Court effectively creates a law-free zone around the

President, upsetting the status quo that has existed since 

the Founding. This new official-acts immunity now “lies 

about like a loaded weapon” for any President that wishes

to place his own interests, his own political survival, or his 

own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, 

J., dissenting). The President of the United States is the 

most powerful person in the country, and possibly the

world. When he uses his official powers in any way, under 

the majority’s reasoning, he now will be insulated from 

criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military 
 

30 TRUMP v. UNITED STATES 

SOTOMAYOR, J., dissenting 

coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. 

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official 

power for evil ends. Because if he knew that he may one 

day face liability for breaking the law, he might not be as

bold and fearless as we would like him to be. That is the 

majority’s message today.

Even if these nightmare scenarios never play out, and I

pray they never do, the damage has been done. The relationship between the President and the people he serves 

has shifted irrevocably. In every use of official power, the

President is now a king above the law. 

* * * 

The majority’s single-minded fixation on the President’s 

need for boldness and dispatch ignores the countervailing 

need for accountability and restraint. The Framers were 

not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the 

Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important 

question: “Does it also combine the requisites to safety, in a 

republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part 

upon the President’s vulnerability to “prosecution in the

common course of law.” Ibid. The answer after today is no. 

Never in the history of our Republic has a President had 

reason to believe that he would be immune from criminal 

prosecution if he used the trappings of his office to violate

the criminal law. Moving forward, however, all former

Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, 

the criminal law that the rest of us must abide will not provide a backstop. 

With fear for our democracy, I dissent. 
_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

JACKSON, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 23–939 

DONALD J. TRUMP, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[July 1, 2024]

 JUSTICE JACKSON, dissenting. 

JUSTICE SOTOMAYOR has thoroughly addressed the 

Court’s flawed reasoning and conclusion as a matter of history, tradition, law, and logic. I agree with every word of 

her powerful dissent. I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of

accountability for Presidents of the United States. I also 

address what that paradigm shift means for our Nation

moving forward. 

I 

To fully appreciate the profound change the majority has

wrought, one must first acknowledge what it means to have

immunity from criminal prosecution. Put simply, immunity is “exemption” from the duties and liabilities imposed by

law. Black’s Law Dictionary 898 (11th ed. 2019); see Hopkins v. Clemson, 221 U. S. 636, 643 (1911) (explaining that 

immunity is “exemption from legal process”). In its purest

form, the concept of immunity boils down to a maxim—

“‘[t]he King can do no wrong’”—a notion that was firmly 

“rejected at the birth of [our] Republic.” Clinton v. Jones, 

520 U. S. 681, 697, n. 24 (1997) (quoting 1 W. Blackstone, 

Commentaries *246 (Blackstone)); see United States v. 

Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). To say 
 

 

2 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

that someone is immune from criminal prosecution is to say 

that, like a King, he “is not under the coercive power of the

law,” which “will not suppose him capable of committing a

folly, much less a crime.” 4 Blackstone *33. Thus, being

immune is not like having a defense under the law. Rather, 

it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore “create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.” Hopkins, 221 U. S., at 643. 

It is indisputable that immunity from liability for wrongdoing is the exception rather than the rule in the American 

criminal justice system. That is entirely unsurprising, for 

the very idea of immunity stands in tension with foundational principles of our system of Government. It is a core 

tenet of our democracy that the People are the sovereign,

and the Rule of Law is our first and final security. “[F]rom 

their own experience and their deep reading in history, the

Founders knew that Law alone saves a society from being 

rent by internecine strife or ruled by mere brute power however disguised.” United States v. Mine Workers, 330 U. S. 

258, 308 (1947) (Frankfurter, J., concurring in judgment). 

A corollary to that principle sets the terms for this case:

“No man in this country is so high that he is above the law.

No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest 

to the lowest, are creatures of the law, and are bound to 

obey it.” United States v. Lee, 106 U. S. 196, 220 (1882). We 

have long lived with the collective understanding that

“[d]ecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen,” for “[i]n a government of laws, existence of the government will be imperilled 

if it fails to observe the law scrupulously.” Olmstead v. 

United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dissenting). 
Cite as: 603 U. S. ____ (2024) 3 

JACKSON, J., dissenting 

II 

A 

These foundational presuppositions are reflected in a procedural paradigm of rules and accountability that operates

in the realm of criminal law—what I would call an individual accountability model.

The basic contours of that model are familiar, because 

they manifest in every criminal case. Criminal law starts 

with an act of the legislature, which holds the power “to define a crime, and ordain its punishment.” United States v. 

Wiltberger, 5 Wheat. 76, 95 (1820); accord, Ohio v. Johnson, 

467 U. S. 493, 499 (1984). Criminal statutes are laws of 

general applicability that express “the assent of the people’s 

representatives” that certain conduct is off limits in our society. Wooden v. United States, 595 U. S. 360, 391 (2022) 

(GORSUCH, J., concurring in judgment). 

When the Federal Government believes that someone has 

run afoul of a criminal statute and decides to exercise its 

prosecutorial discretion to pursue punishment for that violation, it persuades a grand jury that there is probable 

cause to indict. U. S. Const., Amdt. 5. Then, the Government marshals evidence to prove beyond a reasonable

doubt that the defendant engaged in the prohibited conduct 

and possessed the requisite state of mind. See United 

States v. Bailey, 444 U. S. 394, 402 (1980) (observing that,

to hold a person criminally liable, “the concurrence of . . . 

‘an evil-meaning mind [and] an evil-doing hand’” must be 

proved (quoting Morissette v. United States, 342 U. S. 246, 

251 (1952))).

For his part, the defendant “stands accused but is presumed innocent until conviction upon trial or guilty plea.” 

Betterman v. Montana, 578 U. S. 437, 441 (2016). Notably,

criminal defendants have various constitutionally protected rights during the criminal-liability process, including the rights to a speedy and public trial, the right to have 

a jury decide guilt or innocence, the right to the assistance 
 

4 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

of counsel, and the right to confront the witnesses against

him. Amdt. 6. The defendant also has at his disposal many 

means to defend himself against the criminal charge. He 

can, of course, seek to hold the Government to its burden of 

proof at trial. And even before trial, in a motion to dismiss 

the indictment, he might make any number of legal arguments; he can assert, for example, that the Government’s 

charging document does not give adequate notice of the

charge against him or that the law he has been accused of 

violating is unconstitutionally vague. See Hamling v. 

United States, 418 U. S. 87, 117 (1974); United States v. Davis, 588 U. S. 445, 451 (2019). He might further claim that 

the law is unconstitutional as applied to his particular conduct. See United States v. O’Brien, 391 U. S. 367, 376 

(1968). And he might maintain that his conduct, even if 

proved, does not violate the law at issue. See, e.g., Fischer 

v. United States, 603 U. S. ___, ___ (2024) (slip op., at 2). 

The defendant may also raise, and attempt to prove, affirmative defenses that “excuse conduct that would otherwise be punishable.” Dixon v. United States, 548 U. S. 1, 6 

(2006). Generally speaking, affirmative defenses are determinations (often adopted by legislation) that certain conduct otherwise punishable by law is justified. This might 

be the case, for example, when the Legislature determines

that, under specified circumstances, the societal harm particular conduct causes “is outweighed by the need to avoid

an even greater harm.” 1 P. Robinson, Criminal Law Defenses §24(a) (1984) (Robinson).

Importantly, a defense is not an immunity, even though

a defense can likewise result in a person charged with a

crime avoiding liability for his criminal conduct. Consistent 

with our foundational norms, the individual accountability 

model adheres to the presumption that the law applies to 

all and that everyone must follow it; yet, the model makes 

allowances for recognized defenses. One such defense is the 
 

 

Cite as: 603 U. S. ____ (2024) 5 

JACKSON, J., dissenting 

special privilege that Government officials sometimes invoke when carrying out their official duties.1 

All of this is to say that our Government has long functioned under an accountability paradigm in which no one is 

above the law; an accused person is innocent until proven

guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, 

whether they be Government officials or ordinary citizens.

For over two centuries, our Nation has survived with these 

principles intact. 

B 

With that understanding of how our system of accountability for criminal acts ordinarily functions, it becomes

much easier to see that the majority’s ruling in this case

breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority 

has concocted something entirely different: a Presidential 

accountability model that creates immunity—an exemption 

from criminal law—applicable only to the most powerful official in our Government. 

1 

So, how does this new Presidential accountability model 

work? An initial problem is the lack of clarity regarding

what this new model entails. The majority announces only 

its most basic contours. See ante, at 6 (asserting that “the 

—————— 1 See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds

which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in 

confinement, or even taking his life, are not crimes if done with proper 

public authority”); see also 2 Robinson §141(a) (describing the public-authority defense, under which a defendant may escape liability if he “has 

been specifically authorized to engage in the conduct constituting the offense in order to protect or further a public interest”); Brief for United 

States 29–30, n. 11; ante, at 16, n. 3 (SOTOMAYOR, J., dissenting) (citing 

Nardone v. United States, 302 U. S. 379, 384 (1937)). 
 

6 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office”). Instead of no immunity (the individual accountability model) or an 

unqualified grant of absolute immunity for “all official 

acts,” Brief for Petitioner 44 (emphasis added), the majority 

purports to adopt something of a hybrid.2 It holds that a 

former President may or may not be immune from criminal

prosecution for conduct undertaken while in office, to be determined on a case-by-case basis. According to the majority, whether a former President is immune depends on how 

his criminal conduct is classified, as among three possible 

categories.

First, with respect to any criminal conduct relating to a 

President’s “core constitutional powers”—those subjects

“within his ‘conclusive and preclusive’ constitutional authority”—the President is entitled to absolute immunity

from criminal prosecution. See ante, at 6, 8. Second, expanding outward from this “core,” regarding all other “acts

within the outer perimeter of [the President’s] official responsibility,” the President is entitled to “at least a presumptive immunity from criminal prosecution.” Ante, at 14. 

—————— 2 Its feigned judicial humility notwithstanding, see ante, at 41, the majority’s holding goes further—much further—than necessary to resolve 

this case. Petitioner’s argument in both the lower courts and this one 

was that a former President is categorically immune from federal criminal prosecution for “all” acts within the outer perimeter of his official 

duties. See Opening Brief for Defendant-Appellant in No. 23–3228 

(CADC, Dec. 23, 2023), p. 23; 91 F. 4th 1173, 1188–1189, 1195, 1208

(CADC 2024) (per curiam); Brief for Petitioner 41–47 (arguing for absolute immunity for “all actions within the ‘outer perimeter’ ” of a President’s responsibilities, and imploring the Court not to adopt a “ ‘functionbased’ approach”). Thus, it would have been enough for the Court simply

to reject petitioner’s categorical claim and leave it at that. But the majority sua sponte rephrased the question presented, and it now takes full 

advantage of this opportunity to devise from whole cloth an entirely new 

legal framework for judicial evaluation of potential criminal immunity

for former Presidents. 
Cite as: 603 U. S. ____ (2024) 7 

JACKSON, J., dissenting 

Third, if the criminal conduct at issue comprises “unofficial

acts, there is no immunity.” Ante, at 15.3 

Applying the majority’s new Presidential accountability 

model thus seems to involve bearing down on the indictment’s allegations and making a series of determinations

about the nature of the conduct at issue. From the structure of the paradigm, it appears that the first decision point

is whether the alleged criminal conduct involves one of the 

President’s “core” powers. If so (and apparently regardless

of the degree to which the conduct implicates that core 

power), the President is absolutely immune from criminal 

liability for engaging in that criminal conduct. If not, then 

one must proceed to consider whether the conduct qualifies 

as an “official” act or “unofficial” act of that President. If 

the crime is an official act, the President is presumptively

immune from criminal prosecution and punishment. But 

even then, immunity still hinges on whether there is any 

legal or factual basis for concluding that the presumption of 

immunity has been rebutted. Alternatively, if the charged 

conduct is an unofficial act (a determination that, inci-

—————— 3 It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled 

by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 

2 (BARRETT, J., concurring in part). But that is not anywhere close to 

what is happening in this case. No one maintains that Congress has 

passed a law that specifically criminalizes the President’s use of any 

power that the Constitution vests exclusively in the Executive, much less

that the Judiciary is being conscripted to adjudicate the propriety of such 

a statute. To the contrary, the indictment here invokes criminal statutes

of general applicability that everyone is supposed to follow, both on and

off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive 

and preclusive, or shared with Congress, or otherwise) is entirely beside

the point. 
 

8 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

dentally, courts must make without considering the President’s motivations, ante, at 18), the President is not immune.4 

2 

The majority’s multilayered, multifaceted threshold 

parsing of the character of a President’s criminal conduct

differs from the individual accountability model in several

crucial respects. For one thing, it makes it next to impossible to know ex ante when and under what circumstances a 

President will be subject to accountability for his criminal 

acts. For every allegation, courts must run this gauntlet 

first—no matter how well documented or heinous the criminal act might be.

Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably instigates an unsuccessful coup, id., at 41–43, has a fair shot 

at getting immunity under the majority’s new Presidential 

accountability model. That is because whether a President’s conduct will subject him to criminal liability turns on

the court’s evaluation of a variety of factors related to the

character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or 

“unofficial” conduct (minus motive). In the end, then, under 

the majority’s new paradigm, whether the President will be 

exempt from legal liability for murder, assault, theft, fraud, 

—————— 4 JUSTICE BARRETT’s version of the Presidential accountability paradigm works slightly differently; she would have us ask, first, “whether 

the relevant criminal statute reaches the President’s official conduct.” 

Ante, at 2. But, again, what is at issue here are statutes of general applicability—they only “reach” the President’s conduct to the extent that

he chooses to engage in the prohibited behavior. See n. 3, supra. JUSTICE 

BARRETT’s framing, thus, sidesteps the fact that, when immunity is being 

considered, what is actually at issue is whether the President is exempt 

from punishment if he opts to exercise his official duties using means

that violate criminal law. 
Cite as: 603 U. S. ____ (2024) 9 

JACKSON, J., dissenting 

or any other reprehensible and outlawed criminal act will

turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends. 

Under the individual accountability paradigm, the accountability analysis is markedly less convoluted, and leads

to a more certain outcome. None of the same complications

or consequences arise, because, as I have explained, there 

are no exemptions from the criminal law for any person, but 

every defendant can assert whatever legal arguments and 

defenses might be applicable under governing law. Since 

no one is above the law, everyone can focus on what the law 

demands and permits, and on what the defendant did or did 

not do; no one has to worry about characterizing any criminal conduct as official or unofficial in order to assess the 

applicability of an immunity at the outset. 

The majority’s new Presidential accountability model is

also distinct insofar as it accepts as a basic starting premise

that generally applicable criminal laws do not apply to everyone in our society. In the majority’s view, while all other 

citizens of the United States must do their jobs and live 

their lives within the confines of criminal prohibitions, the

President cannot be made to do so; he must sometimes be 

exempt from the law’s dictates depending on the character 

of his conduct. Indeed, the majority holds that the President, unlike anyone else in our country, is comparatively

free to engage in criminal acts in furtherance of his official

duties. 

That point bears emphasizing. Immunity can issue for

Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior. Regardless of the nature or the impact of the President’s criminal conduct, so long as he is committing crimes “pursuant

to the powers invested exclusively in him by the Constitution,” ante, at 7, or as needed “to carry out his constitutional 

duties without undue caution,” ante, at 14, he is likely to be 
 

 

 

 

10 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

deemed immune from prosecution.5 

Ultimately, the majority’s model simply sets the criminal

law to one side when it comes to crimes allegedly committed

by the President. Before accountability can be sought or

rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but 

with policing whether it applies to the President at all. 

Also, under the new Presidential accountability model, the

starting presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful,

or unacceptable a President’s official behavior might be.

Regardless of all that, courts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct 

consists primarily (and perhaps solely) of unofficial acts. 

3 

The structure and function of the two accountability paradigms are not the only differences—the models also assign 

different roles to participants in the criminal justice system, and they ultimately generate different relationships

between the Presidency and the Rule of Law.

Under the individual accountability model, duty-bound 

prosecutorial officers initially exercise their discretion to 

decide whether to seek punishment for alleged violations of 

—————— 5To fully appreciate the oddity of making the criminal immunity determination turn on the character of the President’s responsibilities, consider what the majority says is one of the President’s “conclusive and 

preclusive” prerogatives: “ ‘[t]he President’s power to remove . . . those 

who wield executive power on his behalf.’ ” Ante, at 8 (quoting Seila Law 

LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204 

(2020)). While the President may have the authority to decide to remove

the Attorney General, for example, the question here is whether the

President has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the 

President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority. 
Cite as: 603 U. S. ____ (2024) 11 

JACKSON, J., dissenting 

criminal law (a determination that is made based on numerous factors). And even if prosecutors decide to bring a

charge, a jury of the criminal defendant’s peers ultimately 

determines whether that defendant (including a former

President) will actually be held to account for having engaged in unlawful conduct, after the court has resolved any

legal challenges and has instructed the jury as to the requirements of the law. 

By contrast, under the majority’s new Presidential accountability paradigm, what a prosecutor or jury does may 

not even matter, since the courts take center stage once

charges are brought against a former President, marshaling their resources to conduct a complex and amorphous 

threshold immunity evaluation. Whether a former President will be entirely exempted from the dictates of the law 

(such that the roles of other participants in the criminal justice process become irrelevant) requires a judicial assessment, in the first instance, of his criminal conduct and the 

circumstances under which he acted. 

Finally, and most importantly, recall that under the individual accountability model, an indicted former President 

can raise an affirmative defense just like any other criminal 

defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the 

given circumstances. In other words, while the President 

might indeed be privileged to commit a crime in the course 

of his official duties, any such privilege exists only when the 

People (acting either through their elected representatives 

or as members of a jury) determine that the former President’s conduct was in fact justified, notwithstanding the

general criminal prohibition.

Under the majority’s immunity regime, by contrast, the

President can commit crimes in the course of his job even

under circumstances in which no one thinks he has any ex-
 

12 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

cuse; the law simply does not apply to him. Unlike a defendant who invokes an affirmative defense and relies on a 

legal determination that there was a good reason for his

otherwise unlawful conduct, a former President invoking

immunity relies on the premise that he can do whatever he

wants, however he wants, so long as he uses his “‘official

power’” in doing so. Ante, at 19. In the former paradigm,

the President remains subject to law; in the latter, he is

above it. 

III

 JUSTICE SOTOMAYOR has already warned of the dire consequences that are likely to follow from the majority’s decision in this case. Ante, at 29–30 (dissenting opinion). I have 

thus far endeavored merely to explain what today’s ruling

amounts to on a theoretical level: the Court’s abandonment 

of the individual accountability model as applied to Presidents, and its introduction of a new Presidential accountability model that authorizes the Judiciary to exempt Presidents from punishment under law, depending on the official

or unofficial character of the criminal conduct at issue. 

Here, I will highlight just two observations about the results that follow from this paradigm shift. First, by changing the accountability paradigm in this fashion, the Court 

has unilaterally altered the balance of power between the 

three coordinate branches of our Government as it relates 

to the Rule of Law, aggrandizing power in the Judiciary and

the Executive, to the detriment of Congress. Second, the 

majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future 

Presidents who might otherwise abuse their power, to the

detriment of us all. 

A 

Consider the structural implications of today’s decision 

from the standpoint of the separation of powers. Until now, 
Cite as: 603 U. S. ____ (2024) 13 

JACKSON, J., dissenting 

Congress’s laws, passed by the representatives of the People, bound the People and their elected officials just the 

same. Law, we have explained, “is the only supreme power 

in our system of government, and every man who by accepting office participates in its functions is only the more

strongly bound to submit to that supremacy, and to observe

the limitations which it imposes upon the exercise of the 

authority which it gives.” Lee, 106 U. S., at 220. With its 

adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so),

this Court has effectively snatched from the Legislature the 

authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the

power of both the Office of the Presidency and itself.

As to the former, it should go without saying that the Office of the Presidency, the apex of the Executive Branch, is 

made significantly more powerful when the constraints of 

the criminal law are lifted with respect to the exercise of a

President’s official duties. After today’s ruling, the President must still “take Care that the Laws be faithfully executed,” Art. II, §3; yet, when acting in his official capacity,

he has no obligation to follow those same laws himself.

But whatever additional power the majority’s new Presidential accountability model gives to the Presidency, it 

gives doubly to the Court itself, for the majority provides no

meaningful guidance about how to apply this new paradigm

or how to categorize a President’s conduct. For instance, its 

opinion lists some examples of the “core” constitutional 

powers with respect to which the President is now entitled

to absolute immunity—a list that apparently includes the 

removal power, the power to recognize foreign nations, and 

the pardon power. Ante, at 6–9. However, the majority 

does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s 

worth, the Constitution’s text is no help either; Article II 
 

14 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

does not contain a Core Powers Clause.6 So the actual 

metes and bounds of the “core” Presidential powers are really anyone’s guess.

Nor does the majority explain how to consistently distinguish between official and unofficial acts. Quite the opposite, in fact. While acknowledging that this is a critical line

that courts must draw in order for its new accountability 

model to work properly, the majority simultaneously cautions that making this distinction “can be difficult”—likely

a gross understatement given the recognized “breadth of

the President’s ‘discretionary responsibilities’ under the 

Constitution and laws of the United States.” Ante, at 17. 

The majority likewise provides no guidance as to when, 

how, or why the President’s “presumptive” immunity for 

noncore official acts might be rebutted, saying only that applying the criminal law to a President’s acts must pose “no

‘dangers of intrusion on the authority and functions of the

Executive Branch.’” Ante, at 14 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 754 (1982)).

At most, to distinguish official from unofficial conduct,

the majority advises asking whether the former President’s 

conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 

1, 13 (CADC 2023)). But that test can be illusory, as is evidenced by the facts alleged in this very case. With respect

to the indictment’s allegations concerning petitioner’s attempt to assemble false slates of electors in conjunction 

—————— 6Some of the powers the majority designates as “core” powers are, at 

best, implied from indefinite constitutional language. See, e.g., Seila 

Law, 591 U. S., at 268–269 (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (“Nowhere does the text say

anything about the President’s power to remove subordinate officials at 

will”); Zivotofsky v. Kerry, 576 U. S. 1, 11 (2015) (“[T]he Constitution does

not use the term ‘recognition,’ either in Article II or elsewhere”); id., at 

63 (ROBERTS, C. J., dissenting) (calling the “asserted textual bases” for 

an exclusive Presidential recognition power “tenuous”). 
 

Cite as: 603 U. S. ____ (2024) 15 

JACKSON, J., dissenting 

with the events of January 6, 2021, for example, the majority admits that the “alleged conduct cannot be neatly categorized,” and that “[t]he analysis therefore . . . may prove to

be challenging.” Ante, at 28–29. With that, at least, I could 

not agree more.

This much is clear: Before today, none of these kinds of

inquiries was necessary for criminal liability to be fairly assessed with respect to persons accused of having engaged in

criminal conduct. And, frankly, none is needed now—except as relates to the President under the new paradigm the 

majority has crafted.

Perhaps even more troubling, while Congress (the branch

of our Government most accountable to the People) is the

entity our Constitution tasks with deciding, as a general 

matter, what conduct is on or off limits, the Court has now 

arrogated that power unto itself when that question pertains to the President. In essence, the Court has now imposed its own preclearance requirement on the application

of Congress’s laws to a former President alleged to have

committed crimes while in office. Who will be responsible 

for drawing the crucial “‘line between [the President’s] personal and official affairs’”? Ante, at 29. To ask the question

is to know the answer. A majority of this Court, applying

an indeterminate test, will pick and choose which laws apply to which Presidents, by labeling his various allegedly 

criminal acts as “core,” “official,” or “manifestly or palpably”

beyond the President’s authority.

Ironically, then, while purportedly seeking to transcend

politics, see ante, at 41–42, the Court today displaces the 

independent judgments of the political branches about the

circumstances under which the criminal law should apply.

Effectively, the Court elbows out of the way both Congress

and prosecutorial authorities within the Executive Branch, 

making itself the indispensable player in all future attempts to hold former Presidents accountable to generally

applicable criminal laws. “The Framers, however, did not 
 

16 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

make the judiciary the overseer of our government.” 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 594 

(1952) (Frankfurter, J., concurring). To be sure, this Court 

may sometimes “have to intervene in determining where

authority lies as between the democratic forces in our

scheme of government.” Id., at 597. But it has long been 

understood that “we should be wary and humble” when doing so. Ibid. 

The majority displays no such caution or humility now. 

Instead, the Court today transfers from the political 

branches to itself the power to decide when the President

can be held accountable. What is left in its wake is a greatly 

weakened Congress, which must stand idly by as the President disregards its criminal prohibitions and uses the powers of his office to push the envelope, while choosing to follow (or not) existing laws, as he sees fit. We also now have 

a greatly empowered Court, which can opt to allow Congress’s policy judgments criminalizing conduct to stand (or 

not) with respect to a former President, as a matter of its 

own prerogative. 

B 

If the structural consequences of today’s paradigm shift

mark a step in the wrong direction, then the practical consequences are a five-alarm fire that threatens to consume 

democratic self-governance and the normal operations of 

our Government. The majority shoos away this possibility. 

Ante, at 37 (accusing the dissents of “strik[ing] a tone of 

chilling doom that is wholly disproportionate to what the

Court actually does today”). But JUSTICE SOTOMAYOR 

makes this point plain, see ante, at 29–30, and I will not 

belabor it. 

Here, I will merely observe that, from a theoretical perspective, philosophers have long considered deterrence to 

be a key justification for adopting and maintaining systems 
Cite as: 603 U. S. ____ (2024) 17 

JACKSON, J., dissenting 

that ensure accountability for criminal conduct.7 For that 

same reason, some commentators also maintain that decreasing the certainty of accountability for wrongful acts at 

least arguably reduces incentives to follow the law.8 

Under the individual accountability model, because everyone is subject to the law, the potential of criminal liability

operates as a constraint on the actions and decisions of everyone, including the President. After today, that reality is 

no more. Consequently, our Nation has lost a substantial 

check on Presidents who would use their official powers to

commit crimes with impunity while in office. 

So, one might ask, what remains of accountability for 

Presidents under law? With today’s paradigm shift, the 

majority leaves in place only the chance that this Court 

might someday determine that the criminal conduct in 

question was an “unofficial” act, or that the Government 

will somehow rebut the presumption of immunity that applies to a President’s official acts, such that criminal consequences might attach. But with the parameters of official

and unofficial conduct unknown, I think it highly unlikely 

that a sitting President would feel constrained by these remote possibilities. 

—————— 7See, e.g., Plato, Laws 274 (B. Jowett transl. 2000) (“Not that he is 

punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evildoing”); see also J. Bentham, The Rationale of Punishment 20 (1830)

(“General prevention ought to be the chief end of punishment, as it is its 

real justification”); A. von Hirsch, Doing Justice: The Choice of Punishments 44 (1976) (“The threat and imposition of punishment is called for

in order to secure compliance—not full compliance, but more compliance 

than there might be were there no legal penalties at all”). 8See, e.g., M. Ryan, Taking Another Look at Second-Look Sentencing, 

81 Brooklyn L. Rev. 149, 156, and n. 37 (2015) (“[U]ndermining the . . . 

certainty of punishment . . . could undermine the deterrence value of 

punishment”). 
 

 

18 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

All of this leads me to ponder why, exactly, has the majority concluded that an indeterminate “core”-versus-“official”-versus-“unofficial” line-drawing exercise is the better

way to address potential criminal acts of a President? 

Could it be that the majority believes the obviously grave

dangers of shifting from the individual accountability 

model to the Presidential accountability model might nevertheless be offset by the great benefits of doing so? Cf. J. 

Bentham, A Fragment on Government and an Introduction

to the Principles of Morals and Legislation 3 (W. Harrison

ed. 1948) (arguing that acts can be justified by the maxim 

that “it is the greatest happiness of the greatest number 

that is the measure of right and wrong” (emphasis deleted)). 

Some of the majority’s analysis suggests as much. As far 

as I can tell, the majority is mostly concerned that, without 

immunity, Presidents might “be chilled from taking the

‘bold and unhesitating action’ required of an independent 

Executive.” Ante, at 13. The Court’s opinion candidly laments that application of the law to Presidents might not 

be evenhanded, and that, as a result, Presidents might be

less “‘vigorous’ and ‘energetic’” as executive officers. Ante, 

at 10; accord, ante, at 39. But that concern ignores (or rejects) the foundational principles upon which the traditional individual accountability paradigm is based. Worse 

still, promoting more vigor from Presidents in exercising

their official duties—and, presumably, less deliberation—

invites breathtaking risks in terms of harm to the American

people that, in my view, far outweigh the benefits.

This is not to say that the majority is wrong when it perceives that it can be cumbersome for a President to have to 

follow the law while carrying out his duty to enforce it. It 

is certainly true that “[a] scheme of government like ours

no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority.” Youngstown, 343 U. S., at 613 (Frankfurter, J., concurring). But 
 

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JACKSON, J., dissenting 

any American who has studied history knows that “our government was designed to have such restrictions.” Ibid. (emphasis added). Our Constitution’s “separation of powers 

was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The 

purpose was, not to avoid friction, but . . . to save the people

from autocracy.” Myers v. United States, 272 U. S. 52, 293 

(1926) (Brandeis, J., dissenting). 

Having now cast the shadow of doubt over when—if 

ever—a former President will be subject to criminal liability 

for any criminal conduct he engages in while on duty, the

majority incentivizes all future Presidents to cross the line

of criminality while in office, knowing that unless they act

“manifestly or palpably beyond [their] authority,” ante, at 

17, they will be presumed above prosecution and punishment alike. 

But the majority also tells us not to worry, because “[l]ike

everyone else, the President is subject to prosecution in his 

unofficial capacity.” Ante, at 40 (emphasis added). This attempted reassurance is cold comfort, even setting aside the 

fact that the Court has neglected to lay out a standard that

reliably distinguishes between a President’s official and unofficial conduct. Why? Because there is still manifest inequity: Presidents alone are now free to commit crimes when 

they are on the job, while all other Americans must follow 

the law in all aspects of their lives, whether personal or professional. The official-versus-unofficial act distinction also 

seems both arbitrary and irrational, for it suggests that the 

unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the

President commits crimes using his unparalleled official

powers that the risks of abuse and autocracy will be most

dire. So, the fact that, “unlike anyone else, the President 

is” vested with “sweeping powers and duties,” ibid., actually

underscores, rather than undermines, the grim stakes of 

setting the criminal law to the side when the President 
 

20 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

flexes those very powers. 

The vision John Adams enshrined in the Massachusetts 

Declaration of Rights—“‘a government of laws and not of 

men’”—speaks directly to this concept. Mine Workers, 330 

U. S., at 307 (Frankfurter, J., concurring in judgment). Adams characterized that document as an homage to the Rule

of Law; it reflected both a flat “rejection in positive terms of

rule by fiat” and a solemn promise that “[e]very act of government may be challenged by an appeal to law.” Id., at 

308. Thanks to the majority, that vision and promise are 

likely to be fleeting in the future. From this day forward,

Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all

the vast law enforcement powers enshrined in Article II 

however they please—including in ways that Congress has 

deemed criminal and that have potentially grave consequences for the rights and liberties of Americans. 

IV 

To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their 

criminal acts while in office, the seeds of absolute power for 

Presidents have been planted. And, without a doubt, absolute power corrupts absolutely. “If one man can be allowed 

to determine for himself what is law, every man can. That 

means first chaos, then tyranny.” Id., at 312. Likewise, “[i]f 

the Government becomes a lawbreaker, it breeds contempt 

for law; it invites every man to become a law unto himself; 

it invites anarchy.” Olmstead, 277 U. S., at 485 (Brandeis, 

J., dissenting). I worry that, after today’s ruling, our Nation 

will reap what this Court has sown.

Stated simply: The Court has now declared for the first

time in history that the most powerful official in the United

States can (under circumstances yet to be fully determined)

become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will need to remain ever 
 

Cite as: 603 U. S. ____ (2024) 21 

JACKSON, J., dissenting 

attentive, consistently fulfilling their established role in our 

constitutional democracy, and thus collectively serving as 

the ultimate safeguard against any chaos spawned by this 

Court’s decision. For, like our democracy, our Constitution 

is “the creature of their will, and lives only by their will.” 

Cohens v. Virginia, 6 Wheat. 264, 389 (1821). 

For my part, I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts 

that treats every citizen of this country as being equally 

subject to the law—as the Rule of Law requires. That core 

principle has long prevented our Nation from devolving into

despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries. 

In short, America has traditionally relied on the law to 

keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) 

the criminal laws that their representatives have enacted

to promote individual and collective security will operate as

speedbumps to Presidential action or reaction. Once selfregulating, the Rule of Law now becomes the rule of judges, 

with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide 

whether the law will be any barrier to whatever course of 

criminality emanates from the Oval Office in the future.

The potential for great harm to American institutions and

Americans themselves is obvious. 

* * * 

The majority of my colleagues seems to have put their

trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our 
 

22 TRUMP v. UNITED STATES 

JACKSON, J., dissenting 

sakes, I hope that they are right.

In the meantime, because the risks (and power) the Court

has now assumed are intolerable, unwarranted, and plainly 

antithetical to bedrock constitutional norms, I dissent.